fVff i' (Jnrnpll ICam i>rlynoI ICtbrata Cornell University Library KF8868.1.A13 A collection of forms of pleadings in ac 3 1924 020 091 504 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/cu31924020091504 FORMS OF PLEADINGS m ACTIOKS UNDER THE CODE OF PROCEDURE OF THE STATE OF NEW YORK: AJtD ADAPTED TO THE NEW PEACTICE IN THE STATES OF MISSOURI, CALIFORNIA, WISCONSIN, KENTUCKY, INDIANA, OHIO, AND ALABAMA ; THE TERRITORIES OF OREGON AND MINNESOTA, AND THE ISLAND OF NEWFOUNDLAND, COPIOUS NOTES AND AUTHOKITIES. TO WHICH- AEB ADDED FORMS IN SUBMISSIONS OF CONTEOVEEST -WITHOUT ACTION; IN PEOCEEDINGS AGAINST JOINT DEBT0E3, ETC.; AND OP JUDGMENTS BY CONFESSION. ABBOTT BEOTHERS, COUNSELORS AT LAW. NEW YOKE: JOHN S. VOORHIES, LAW BOOKSELLER AND PUBLISHER, 20 NASSAU STKEET. 1858. ^1^)^"^ ■ Entered according to Act of Congress, in the year 1858, by ABBOTT BEOTHEES, In the Clerk's Office of the District Coiirt of the United States for the Southern District of Few York. Bakdb iSe Qodwih, Printers, 1 Spruce St, N. T. PREFACE. Under the New Practice, Pleading is but little more than the Rhetoric of Law ; and the foundation of good pleading is now, more than ever before, to b'e sought in a clear and exact knowledge of the essential elements of causes of action and defenses. It is not to be expected that any set of mere formulas can now be of much util- ity to the pleader ; since pleadings will be as unKke each other as the facts — ^not the evidence — in any one case are unlike the facts in another. The usefulness, under the New Practice, of such a work as this, will de- pend on how far it presents, in connection with prece- dents for all cases of common occurrence, the necessary material or data for readily adapting them to varying cases, and for readily constructing pleadings for cases of rarer occurrence. "With this view the following work has been prepared. Mode of Statement. — ^This work is a collection of Forms, not a collection of Formulas. The reader, there- fore, will not expect that any precise uniformity of phraseology has been studied. A few of the Forms, l'^ PREFACE. especially some of tliose which, are actual precedents, are more prolix than others. The best mode of statement of any fact, we consider to be that which is best suited to presenting" it with a view to the issue desired to be produced, and the evidence desired to be made admissi- ble, and without any attempt to make use of a stereo- typed phrase merely because it has been stereotyped. Annotation. — Much attention has been given to pre- senting such explanation and authorities as to what are the elements of each cause of action, what the proper relief, and, to some extent, who the necessary parties, that the pleader may easily modify a given Form, or frame for himself a new one, appropriate to any unusual case. By the frequent suggestion, both in the notes, and, within brackets and in italics, in the text, of addi- tions, omissions, and alternative allegations, the scope and use of each Form is much enlarged. In fact, by these means a great proportion of the pleadings really com- prise three or four Forms in one. Selection of Actions. — The chapter of Complaints presents statements of causes of action of every nature, except a few classes of cases of the most rare occurrence. In the selection of instances under each topic, we have given those which seemed to promise to be most useful, as representing the largest class of cases under that topic. Arrangement. — The classification of actions furnished by the old distinctions in form has not been replaced by any new system. A philosophical analysis of causes of PREFACE. V action wMch should furnisli the basis of an exhaustive classification, is, we conceive, a very important desidera- tum, and, when accomplished, will settle many difficult questions, and harmonize many apparent anomalies, which meanwhile must continue to embarrass the prac- titioner. Such an effort, however, we have not under- taken here. The arrangement adopted is that which has been thought the best calculated for convenience of reference in the hands of the practitioner in the present stage of the New Pr-actice. An examination of the table of contents will best give a convenient familiarity with the order of arrangement pursued. In conclusion, we desire to express our sincere ac- knowledgments of the valuable counsel and material we have received from the bar here and elsewhere, in the progress of the work. ABBOTT BROTHEKS. 119 Nassau St., New York, ) March, 1858. \ CONTENTS. CHAPTER I. — Peovisions of the Code. CHAPTER n. — Formal Parts of Pleadings. No. of Form. I. — Formal Pakts of the Complaint, .... 1 n. — FoBMAL Parts of the Answeb, .... 1. By a sole defendant, • .... 2 2. By one defendant answering separately, . . 3 3. By two defendants answering together : — as to the first cause of action, general denial, and new matter in de- fense ; as to the second cause of action, denial of knowl- edge, &o., with counter-claim, m. — FoEMAL Parts of the Reply, .... rV. — Formal Parts of the Demurrer, Page. 16 18 18 19 4 20 5 24 6 25 CHAPTER in.— Verifications. I. — Bt Sole Plaintiff oe Defendant, a Natural Peeson, . 7 2"? n. — ^Bt two Defendants not United in Inteeest, but Pleading Together, ....... 8 29 m. — Bt ONt; of Several Persons United in Interest, and Plead- ing Together, ...... IV. — By an Officer of a Corporation Plaintiff or Defendant, . v. — Bt an Attoenet, — When the Party is not within the County, VI. — Bt Agent oe Attorney, ..... 1. When the action or defense is founded on a written instru- ment for the payment of money only, and it is in the possession of the Agent or Attorney, . . .12 2. When all the material allegations are within the personal knowledge of the Agent or Attorney, . . 13 9 29 10 30 11 31 32 32 vm CONTENTS. CHAPTER IV.— Complaints. No. of Form. Page. Section I. — Averments in Actions by and against particular persons, showing their official character, or capacity to sue and be sued, 84 I. — By Infant Plaintiff, showing Appointment of Guardian ad LITEM, . . . . . - . . 14 85 II, — Bt Marhied Woman, showing the Sepaeatb Property respect- ing WHICH SHE SUES, ..... 36 1. In an action on a note or other contract for the payment of money only, . . . . . . 15 36 2. In an action other than on contract for the payment of money only, ...... 16 88 III. — Against Husband and Wife, on a debt of the wife con- tracted BEFORE MARRIAGE, ..... 89' 1. Where the husband has acquired by an areie-nuptial con- tract separate property of his wife, . . . 17 89 2. Where the husband has acquired after marriage that which was before marriage the property of his wife, . .18 40 3. Where the husband has acquired that which became the separate property of his wife after marriage, IV. — Bt AND AGAINST CoKPOBATIONS, .... 1. Manufacturing, Mining, Mechanical or Chemical Company, 2. Plank-road or Turnpike Company, .... 3. Banking Association suing in its associate name, 4. Banking Association suing in the name of its president, 5. Foreign Corporation, ..... V. — By Joint-stock Company suing in the Name of an Officer, VI. — By Committee of a Lunatic or Habitdal Drunkard, VII. — By Administrator, ..... VIII. — By Executor, ...... IX. — By and against RECErvEits, .... 1. Eeceiver appointed in supplementary proceedings, 2. Receiver appointed pending litigation, . 3. Eeceiver of dissolved corporation, .... Section II. — Complaints in Actions for Money Lent, Paid, Received, (Ssc, ....... I. — For Money Lent — By Lender against Borrower, II — For Money Paid, ...... 1. By one having paid the debt of another, to be repaid on demand, . . . . . . . 83 56 2. By one having paid the debt of another, to be repaid on a certain day, ...... 34 57 19 40 41 20 41 21 43 22 43 23 44 24 45 26 46 26 47 27 48 28 50 51 29 51 30 61 81 52 53 32 54 56 35 58 86 60 37 61 88 62 CONTENTS. IX No. of Form. Page. 3. By assignee of lender against boiTower, on an account for money lent, paid, &c., ..... 4. By maker of accommodation note, having paid it, 5. By indorser of note, having paid a part, — to recover from the maker the amount paid, .... 6. By surety on lease, against principal, 1. By surety against principal — for debt for goods sold, and costs of judgment thereon, paid by the surety, . . 39 63 S. By one of two joint makers of note, having paid it, against the other, for contribution, .... 40 64 III. — FoK Money Eeoefved, ...... 64 1. For repayment of advances on a contract for services, unful- filled, . 41 64 2. For repayment of a deposit on contract for purchase of real estate, unfulfilled, . . . . . 42 65 3. By pledgor of a note as collateral to a debt, against the pledgee, the note having since been collected by the pledgee ; — to recover the excess of its amount over the amount of the debt, ..... 43 68 4. By assignees against the pledgees of a debtor who had hypothecated a mortgage as collateral to notes on which he was jointly liable, the mortgage having since been collected by the pledgees ; — to recover the excess of its amount over the amount due on the notes, and to have the notes delivered up, . 5. For repayment of a judgment paid and afterwards reversed, 6. By owner of goods against common carrier, to recover back excess of freight exacted, .... 1. Against factor, for price received for goods sold, 8. Against factor, under del credere commission, 9. Against note-broker, for proceeds of note discounted. 44 69 45 72 46 73 47 74 48 75 49 77 78 78 50 78 51 79 52 80 Section III. — Complaints in Actions for Goods Sold, I. — Vendor against Vendee, ..... 1. Sale and delivery, ..... 2. Shorter form, upon an account, .... 3. Sale evidenced by memorandum in writing, 4. Sale and delivery, anticipating and avoiding defense of payment, , . . . ■ • . 53 82 5. Same, anticipating and avoiding defense of an unexpired credit, ...... 54 84 6. Against vendee, a married woman, . . . . 55 85 7. For necessaries furnished to wife or children, . . 56 88 8. Sale to defendant and delivery to third party, . . 57 89 n. Assignee of Vendor against Vendee, . . 58 89 X CONTENTS. No, of Form. Page. III. — Vendor against Vendee. Upon a fraudulent purchase, seeking judgment for price, and an injunction restraining sale meanwhile, . .69 91 Secttion IV. — Gomplaints in Actions for the Hire of Personal Prop- erty, ....... 1. On an account for the hire of horses and carriages, 2. For the hire of a pianoforte, with damages for not return- ing it, . 3. For the hire of furniture or fixtures, with damages for ill use, ....... Sbotion V. — Complaints in Actions on Verbal Agreements for Rent or Purchase Money, ..... 1. For use and occupation, ..... 2. For consideration money of a conveyance. Section IV. — Complaints ivK Actions for Services, 1. By an attorney, — for services and disbursements, 2. By principal of school, — for tuition bills, . 3. By a writef, — for services in editing a newspaper, 4. By a writer, — for services in editing or compiling a book, 5. By an architect, — for his services, 6. By proprietors of a newspaper, — ^for advertising, . 1. By advertising agent, — for services and disbursements, 8. By a clerk, — for salary, ..... 9. By hired servant, — for wages, .... 10. On an account for work and materials, 11. On a special contract, completely fulfilled, 12. On a special contract, modified by parol, with a claim for extra work, . . . . . .76 112 Section VII. — Complaints in Actions on Negotiable Promissory Notes, . . . ■ . . . . 115 I. — Payee against Makek, . . . . . . ng 1. On a note payable at a certain time after date ; setting out copy of the note, ..... Y"? n^ 2. On the same ; another form, pleading legal effect of the • note, ....... 3. On a note payable at a certain time after sight, 4. On two notes, one having been partly paid, . 5. On a note signed by attorney in fact, . 6. On a note wrongly dated, ..... 1. On a note made by partners, .... 8. On the same ; another form, averring partnership of the makers, . • . . . . . . 84 125 9. By partners, on a note payable to the order of their firm name, 86 125 92 60 92 61 93 62 95 97 63 97 64 99 100 66 100 66 102 el 103 68 104 69 105 70 105 71 106 72 107 73 108 74 108 75 110 78 119 79 120 80 121 81 123 82 124 83 124 86 126 81 127 88 127 89 129 90 131 133 91 133 92 184 93 137 138 94 138 CONTENTS. ^ xi No. of Form. Page. 10. By a svirviving partner, on a note payable to the order of his late firm, ...... 1 1. By payee against surviving maker, 12. By a manufacturing corporation formed under the general act, payees, against a foreign corporation, makers, 13. By a receiver, payee, against partners, makers, 14. By the treasurer of an unincorporated company, on a note payable to the former treasurer of the company, II. — Indoesee against Makek, ..... 1. First indorsee against maker, .... 2. Second or later indorsee against maker, 3. First indorsee against maker, on note payable to the maker's order, and by him indorsed to the plaintiff, in. — Indoesee against Indoksbk, .... 1. First indorsee against payee, indorser, 2. Remote indorsee against indorser, on note made by partners, pleaded according to legal effect, ... 95 141 3. Indorsee against indorser; non-presentment excused because the maker could not be found, . . . 4. Indorsee against indorser ■who has waived notice, IV. — Indoksee against Maeee and Indokseb, 1. First indorsee against maker and payee, indorser, 2. Remote indorsee against maker, first indorser, and a later indorser, ....... 3. Indorsee against maker and indorser, on a note payable on demand, ...... V. — Payee against Makee and Indoesee. Payee having parted with fuU value on the faith of the indorse- ment, . . . . . . . 101 146 Section VIII. — Complaints in Actions on Bills of &ehange, I. — Patee against Aoceptoe, ...... 1. Common form, ...... 2. Shorter form, setting out a copy of the bill, 3. On an acceptance, varying as to time from the bill, 4. Against acceptor for honor, .... 6. On a bill directed by the drawer to himself and accepted by him, ....... IL — ^Patee against Deawee, ..... 1. On a bill payable at a certain time after date or sight, — for non-acceptance, ...... 2. On the same ; another form, setting out a copy of the bill, 3. On a bill payable on a day certain, or at a certain time after date,— for non-payment, , . . . 109 167 96 142 97 142 143 98 143 99 144 :oo 146 149 149 102 160 103 152 104 162 105 162 106 154 154 107 164 108 166 xn CONTENTS. No. i. On a bill payable at a certain time after date or sight, — for non-payment after acceptance, 5, On the same ; non-presentment for acceptance excused, the drawer having counterinanded the bill, . 6, On the same ; non-presentment for acceptance excused be- cause the drawer could not be found, III, — Payee against Dbawze and Acoeptob, 1. On a bill accepted by the drawee, 2. On a bill accepted for honor, .... IV. — By Indorsee, ...... 1. Against drawer and indorser, — for non-acceptance, 2. Against drawer, indorser before acceptance, and acceptor, — for non-payment, . . . . . 116 163 3. Against drawer, acceptor, and indorser after acceptance, — for non-payment, ...... V. — Drawee against Acceptor, ..... 1. On a bill returned to, and taken up by the drawer, 2. On a bill payable to the drawer's own order and not nego- tiated, ....... Form. Page, 110 157 111 158 112 169 159 113 159 114 160 161 115 161 117 164 165 118 165 119 166. 167 167 120 167 121 169 Section IX. — Complaints in Actions upon Checks, . I. — Against Drawer, ...... 1. Payee against drawer, ..... 2. Indorsee or bearer against drawer, 3. Payee against drawer; omission to give notice of non-pay- ment excused because the drawer had no funds, . 122 169' 4. Indorsee against drawer; non-presentment excused because of the failure of the drawee, II. — Indorsee or Bearer against Drawer and Indorsee, III. — Against the Bank, Drawee, having oertifxed, . Section X. — Complaints in Actions on Non-negotiable Instruments for the Payment of Money, ..... I. — Account Stated, ...... II. — Non-Negotiable Notes and Bills, .... 1. On a note payable in case the proceeds of the maker's busi- ness exceed a certain sum, .... 2. On a note payable in chattels, .... 3. By indorsee of a bill of exchange payable out of proceeds of sales, ...... IIL — Stock Subscriptions, .....( 1. By a plankroad company organized under the general act, to recover subscriptions to its stock, . 2. By a railroad company, for the same. 123 170^ 124 171 125 172 173 126 174 175 127 175 128 176 129 177 179 130 179 131 185 CONTENTS. xiii No. of Form. Page. iV. — Insurance, ....... igg 1. By the assured, on a fire policy, renewed, . . . 132 186. 2. By the assignee of the assured, on an agreement to insure, but the policy never having been delivered, . 133 188 3. By the assignee in trust for the wife of the assured, on a life policy, 134 191 4. On a marine policy,. ..... 135 193 V. — GUABANTIBS, ... . . igg 1. For payment of r6nt, ..... 136 196 2. On agreement to be answerable for price of goods sold to third party, . . . . , . 137 198 3. On a guaranty of a precedent debt, . . .138 200 VI— AwAitDs, . . . . . . . 139 200 VII. — Statutokt Undbetakings, ..... 204 1. On an undertaking for costs by non-resident plaintiff, . 140 204 2. On the same, for costs and damages on an attachment, 141 205 3. On the same, on an arrest, ..... 142 207 4. On an undertaking for the return of the property, &e., in an action of claim and delivery, . . . . 143 209 5. On a bond given to obtain discharge of an attachment, 144 212 6. On an undertaking, for costs of appeal, . . . 145 217 Vni.— Bonds, ....... 219 1. On a money bond, ...... 146 219 2. On a bond given to secure a stay of proceedings ; for refor- mation of a mistake in it, and judgment upon it as re- formed, . . . . . . 147 221 3. On a bond for rent, against principal and sureties, . 148 224 4. On a bond for the faithful accounting of an agent, . 149 226 • Section XI. — Complaints in Actions on Judgments, . . . 229 1. On a judgment of a court of general jurisdiction, . 150 229 2. On the same, by an assignee, . . . ,151 230 3. On a judgment of a justice of the peace, . . 152 231 Section XII. — Complaints in Actions on Contract, for Unliquidated Damages, ....... 233 I. — On Conteacts respecting Services, .... 233 1. By an employee, discharged, or prevented from fulfilUng his contract, . . . . . .153 234 2. Against a builder, for not completing his work, — with special damage, ..... 154 235 3. Against the same, for not well iinishing a building, . 155 237 4. Against a surgeon, for maltreatment, . . . 156 238 XIV CONTENTS. No. of Form. II. — On Cokteaots eespecting sales of Personal Pbopertt, 1. Against vendor, for not delivering goods, . . 157 Against the same, there having been a part payment but no memorandvmi of the contract, . . .158 Against the same, for not delivering stock, . . 159 Against purchaser, for refusing to receive and pay for goods, 160 Against the same, the contract being make by broker for both parties, . . . . . . 161 Against the same, for not delivering note for goods bought, 162 2. 4. 5. 6. III. — On Conteaots eespecting sales of Eeal Pkopeett, 1. Against vendor, for not fulfilling agreement to convey, 2. Against vendee, for not fulfilling agreement to pui'ohase, 3. Against the same, for deficiency on re-sale, IV. — ^Between Landlord and Tenant, .... 1. By landlord against assignee of lessee, — for rent, . 2. By grantee of reversion, against lessee, — for rent, 3. Against tenant, for breach of covenant to keep premises in repair, ...... 4. Against landlord, for breach of covenant to keep premises in repair, — with special damage, 5. Against the same, for breach of covenant for quiet posses- sion, ...... 6. Against the same, for breach of agreement to complete de- mised premises well, ..... V. — On Waeeanties and Covenants of Title, 1. On warranty of the soundness of a horse, 2. On warranty of the genuineness of a note, 3. On warranty of the amount due on a judgment assigned, 4. On warranty of title of chattels sold, 5. On covenant against incumbrances on real property, . 6. On covenant of warranty on real property, VI. — For Breach of Promise of Maeriage, VII. — ^FoR Breach of Agreement to Indemnify, 1. Against principal, ..... 2. Against sureties, ..... Section XIII. — Complaints in Actions against Bailees, . 1. — Against Caeeiees, ..... 1. Against common carrier, for loss of goods, 2. For the same, for breach of the carrier's duty, 3. Against common or private carrier, for loss of goods, — ( a special contract, ..... 4. Against the same, for injury to goods carried by water. 163 164 165 166 167 168 169 170 171 172 173 174 176 176 177 178 179 180 181 182 183 184 Page. 239 289 240 241 242 243 244 245 245 247 248 249 249 251 252 253 264 265 258 258 259 260 261 262 268 265 267 267 268 272 272 272 274 276. 277 186 279 187 281 283 188 283 189 283 284 190 284 191 285 192 286 287 193 287 194 290 CONTENTS. XV No. of Form. Page. 5. Against the same, for failure to deliver at the time agreed, — with special damage, . . . . 186-278 6. Against common carrier, for failure to deliver in a reasona- ble time, — -with special damage, .... 7. Against the same, for injuries to the person of passenger, II. — Against ATabehousemen, ..... 1. For loss of goods, ..... 2. For injury to goods, ... . . III. — Against Pledgees, . . . , . . 1. For loss of pledge, ...... 2. For injury to pledge, ..... IV. — Against Innkeeper. For loss of trimk, ...... Section XIV. — Complaints in Actions for Negligence, 1. For keeping a mischievous dog, by ■which plaintiff was bitten, . . ... 2. For keeping open a dangerous hatchway, through which plaintiff fell, ...... 3. Against owner of vehicle negligently driven by servant against plaintiflF's vehicle, — showing damage to person and property, ..... 195 294 4. Against railroad company, for collision with plaintiff's vehicle at a crossing, ..... 196 296 5. Against sheriff, for neglecting to return execution, . 197 298 6. Against the same, for neglecting to levy, . . . 198 299 7. Against the same, for neglecting to pay over moneys col- lected on execution, . . . . .199 300 8. Against the same, for an escape, .... 200 301 Section XV. — Complaints in Actions for Deceit, ' . . ^ 303 1. For fraudulently representing third party to be of good credit, ...■••• 2. For fraudulently misrepresenting value of good-will of business sold, ....•■ 3. Against vendor of chattels, for fraudulently representing them to be his property, . . . • • 4. For fraudulently misrepresenting value of stock in a cor- poration, agreed to be taken in payment for services, 5. Against sheriff, for false return, . . . • Section -KMl.—C . 134 Brown, Wilbur v. . . 276, 324 Brown, Wood v. . . . 333 Browne, Selbey v. . . , 97 Browning v. Wheeler, . . 202 Brownson v. Gifford, . . . 429 Bruce v. Westervelt, . . 355 Brunner v. Stout, . . . 109 Brundage, Deyd v. . . Si4r Brush, The People v. . . . 221 Bryan, Crandall v. . . . 306. Bryan, The Waterville Manufactur- ing. Company v. . . 42, 45. Bryant v. Goodnow, . . 182. Bryant, Philpott v. . . . 157 Buch, Mitchell v. . . . 41 8- Buckley v. Leonard, . . . 288 Budd V. Bingham, . . 323, 358, 359 Buddingtou v. Davis, . . 488, 492. Buel, Sumner )). . . . 331 Buell, The University of Vermont v. 182 Buhler «). Wentworth, , . 488. Bulkley, Keating v. . . .97 Bullard v. Bell, ... 368 Bunce v. Purdy 506 Burn, McDonald v. . . . 310 Bush, Bigelow v. ... 324, 425 Bush V. Stevens, . . . 198 Bushnell, Caswell «. i . . . 22 Burbank, President, 254 276 . 82 236 . 126 266 . 210 475 351, 362 100 343 373 415 286 423 404 415 126 231 98 98 196 124 474 477 286 323 323 481 274, 387 281 . 455 . 86 87 . 134 . M 369 . 494 343 . 139, 143 274, 494 . 84 221 . 140, 223 369 . 430 139, 381 209, 210, 212 606, 607, 514 450 Coats V. Holbrook, Cobb, Dows V. Cobb V. Frazer, Cobine v. St John, . Cochrane v. Scott, Cockburn, Van Buren v. Cockroft, Drake v. Cocks, Cook V. . Coddingtou v. Davis, Coddington, Ogden v. Coddington, Yale v. Coh'en, Jeroliman v. Colchester v. Brooks, Cold en, Pearce v. Colder, Blakely v. Cole V. Jessup, . Coleman, Bowdoin v. Coleman, Post v. Colie, Belshaw v. Colie, Brown v. . Collerell v. Appsey, Collins V. Barrow, Collins V. Martin, Collins, Tonson v. Colvill, Gaffney v. . Colvin V. Holbrook, Colwell V. The New York and Erie Railroad Company, Commercial Bank of Pennsylvania, The, V. The Union Bank, Commercial Mutual Insurance Com- pany, Nelson v. . . . Commissioners of Emigration, The, Phoenix «. Comstock, Mott v. Comstook «;. Smith, Comstock V. Stiles, . Comstock, Turner v. Comstock, Willoughby Conapt V. Van Schaick, Congreve v. Morgan, Conklin v. Bishop, Conklin, Cottrell v. Connah v. Hall, , Connell, Seddon v. , Connolly v. Baxter, Connoss v. Meir, CouoUy V. Pierce, Conover, The Mayor, &e., of New York V. . . . 386, Conover, Van Neste v. Conrad, Agde v. Conroy j;. Warren, 118, 133; Cook, Ash V. . . . Cook, Bacon v, . Cook V. Chase, Cook V. Cox, Cook V. Dickerson, . Cook, Jones v. . . . Cook V. Litchfield, . Cook V. Staats, 111 109 98 133 103 368 300 307 44 497 390, 391 338 99, 252, 140, 109 488 139 285 367 291 351 147 315 393 98 312 67 390 363 463 168, 170 430 141 462 343 385 302 465 28 TABLE OF CASES. xxvn 118, Cook, Oeehs v. Cooke V. Nathan, Cooley V. Betts, •• Cooley, Pierson v. Coon V. Brook, Cooney v. McCabe, Cooper V. Clason, Cooper V. Elston, Cooper V. Stone, Cooper V. Watson, Cope V. Gilbert, Copeland, Brock v. Corbiere, Taylor v. Corlies v. Gardner, Cornelius v. Van Slyck, Cornell v. Preseott, Cornill v. Barnes, Corning v. Greene, Corning v. McCuUough, Corning v. Smith, Corning v. Southland, Cornish v. Rowley, . Cornwell, Lovett v. Cortelyou v. Lansing, Corwin v. Freela'hd, Corwin, Tompkins v. Costar, Murry v. ... Costigan v. The Mohawk and Hud- son River Railroad Company, 106, 125, 126 . 198 16 . 136 86, 87 . 477 404 . 109 333, 341 . 265 202 . 289 135, 136 84 421 231 131 366 423 299 67 171 284 487 202 76 110, 235 CottreU V. Couklin, . . 140, 147 Couchman, Benson v. 118, 135, 138 Cougan, Morrow v, . . . 22 Courier v. MoNamara, . . 208 Coussin, Ahsbahs v. . . . 204 Govill, Ayresii. . . . 453,489 Cowdrey, Goelet ■!). . 2ii6. 210, 484 Cowie V. Goodwin, . . 9^ Cowring, Nelson v. . . . 133 Cowles,' The Amherst Academy o. 183 Cowles, The People on rel. Da vies %<. 442 Cozine v. Graham, Craft, Harbeck v. Crafts, ^alden v. Craig, Richardson v. Crain, Beach v. . Cramer, Wormouth v. Crandall v. Beach, Crandall v. Bryan, Crandall v. Clark, Crandall, Poller v. . Crane, CrosweU v. Crane, Dygert v. Crane, Parker v. Crapser, Van Benthuysen v. Crashow v, Thompson, Crary, Allen v. Cresson v. Stout, . Crilley, Morehouse v. Crim, Edick v. . . ■ Crippen v. Hudson, . Critchlow v. Parry, 168, 80 ,480 . 76 208 . 237 333, 344 . 17 306 113 423 98 301 99 67 387 352 351 382 258, 306 408 135 Crocker )■. Baker, . . . 394 Cromwell, Noble v. . . . 429 Cronk, Elliot v. . . . 300 Cronk v. Whitaker, . . 364 Crookshank v. Burrell, . . 109 Crookshauk v. Gray, ... 94 Cropsey, Bacon v. . . 299, 300 Cross V. Garnet, . . 304, 305 Cross, Moore v. . . 147, 148 CrosweU v. Crane, ... 98 CrosweU v. Weed, . . . 338 CroWell, Ruckman v. . . . 477 Cruger v. Ai-mstrong, 133, 198, 170 Cudlipp V. Whipple, 59, 60, 80, 93, 453 Culver V. Van Anden, . 333, 335 Cummings v. Voroe, . . . 363 Cummings, White v. . . 27 Cunningham v. Jones, . . . 364 Cunningham v. Pell, . . 368 Curling v. Shuttleworth, . . 65 Curtis, Southworth v. . . 28 Curtis V. Dutton, ... 48 Curtiss, Bank of Rome v. 298, 299 Curtiss V. The Rochester and Syra- cuse Railroad Company, . 282 Cushman v. Shepard, . . 367 Cuyler v. Coaks, . . . 481 Daguerre v. Orser, 801, 303 Dain v. Wyckoff, 349, 350 Dakin v. Hudson, 231 Dakin, Thomas v. . 44, 45 Dakin, Wheeler v. 49,230 Dales, Clark v. . 240, 447 Damme, Wadhurst v. . 289 Dana, Holmes «. . , 182 Dane v. Wykoflf, . . 334 Danforth, Gilberts. . 177 Daniels, Austin v. . 368 Davidson v. Donadi, 313, 357 Davidson v. Remington . 494 Davidson v. Savage, 17 Davis, Buddington v. 488, 492 Davis V. Carpenter, . 47 Davis V. Cary, . 228 Davis, Coddington v. . 139 Davis, Fuller ti. 257 Davis, Gilbert v. . . 454 Davis, Holmes v. 359 Davis, Kinion v. . . 288 Davis, Lynch v. 375 Davis V. Morris, . . 504, 506, 509 Davis V. Potter, 28 Davis, The Dutchess Cotton Manu- factory V. . 41, 180 Davis V. Tlie Mayor &o. of the City of New York, . . 393 Davis, The Mutual Benefit Life In- surance Company y. 45, 128 XXVlll TABLE OF CASES. Dayis v. Turner, . . . 402 Davis, Victor «. . . . 65,79 Davison v. Powell, ... \1 Davison, Walden v. . . . 300 Dawes, *Bentley v. . . . 246 Day V. Perkins, .... 421 Daykin,The Midland Railway Com- pany V. .... 297 D'Camp, Holmes v. . . . 127 Dean, Bailey v. . . . 346 Dean v. Gridley 298 Dean v. Hall, . . . 148, 263 Dean ^. Hewit, . . . .135 DeBevoise, Burnham v. . . 453 Decker t;. Mathews, . . 313, 354 Dederer, Yale v. Deere, Miller v. . DeForest v. Leete, DeForest, JSTellis v. DeForest, Rankin v. DeForest v. The Fulton Fire Insu- rance Company, . DeFreeze v. Trumper, DeGraw, Westlake v. Degroot, Kiddle v. Deifendorflfj). Gage, . De La Chaumette v. The Bank England, .... Delafield v. Kinney, Delamater v. Russell, . Delaware v. Ensign, Delavan, Ryckman v. . Delavan, White u. . Delaverque v. Norris, . Deklyn, Downing v. DeLeger v. Michaels, DeLisle v. Priestman, Del Vechio, Eno v. DeMott V. Hagerman, Denison, Duryea v. Dennis v. Kennedy, •. Denton v. Nanny, Depew, Ferreira v. . DePeyster, Clarkson v. DePeyster v. Hasbrouek, DePeyster, Scott v. DePeyster, "Wheelwright v. 313, 6, 88 330 264 454 472 195 . 261 98 . 323 258 of . 135 44,45 . 349 606 . 331 331 . 263 494 . 497 284 . 323 351 . 143 433, 466 . 423 494, 495 . 423 413 . 368 466 Derby ij. The Philadelphia . Evans, Evans, Rhodes v. . Ex Parte Bank of Monroe, 402 . 423 198 . 494 141,469 261, 307 453 311,343 403 . 98 22,23 t>. 42, 151, 450 100 353 74 118 55 282 263 133 147 . 300 183 . 117 326 . 346 202 . 101 109 . 168 80, 374 . 23 353 . 353 477 . 289 58,93 344 67 323 354 59 506 353. 423 . 205 313,817 119,479 493 . 89 98 423 32 Fairbanks v. Bloomfield, 186, 319 Fairchild v. Case, . . . 303 Fairchild, Gillett v. . . . 36, 52 Fairchild, Staples v. . . .32 XXX TABLE OF CASES. Fales V. Hipks, Fanning v. Esmay, Farley, Clart v. . . . 94, Farley, Farquhar v. . . . Farnham, Max-well v. . 313, Farmers' Bank of Kent County, The, -0. The Butchers' & Dro- vers' Bank, .... Farmers' Bank of Saratoga County V. Merchant, Farmers' Loan & Trust Company, The, Breasted v. . . 193, 359 Farnam, Hall v. . . . 147 Farquhar v. Farley, ... 68 Farwell, Eyers v. . . . 98, 250 Fassett, Treadwell 1). . . .26,31 Fay V. Grimstead, . . . 484 Faxton v. Clark, . . .273 Featherstonaugh, Bi'adshaw v. . 97 Fell, Emery v. . . 55, 58, 93 Fellerman, Johnson v. . . 504, 613 Fellows V. Lee, . . . 477 Ferrand, Pownal v. . . .61 Ferreira v. Depew, . . 494, 496 Ferris, Dolph v 289 Ferris v. Paris, . . . 76 Ferro v. Roscoe, . . . .334 Ferry, Loomis v. . . . 289 Fetridge v. Merchant, . . . 887 Fetridge v. Wells, . . 387 Field V. Ha-wxhurst, . . 423 Field V. Holbrook, ... 385 Fielding, Phillips v. . . .94 Finch V. Carpenter, . . .51, 229 Finn, Gandal v. ' . . 504, 509, 510 Finne, Center v. . . . 294 First Baptist Society ,The, v. Rapalee,180 Fisher I;. Ellis, . . . 183 Fisher, Leavitt v. . .' 451, 454 Fisher v. Pond, . . . 299 Fisher, Woodruff «. . . 394 Fitch V. Bigelow, ... 26 Fitch, New York Printing & Dye- ing Establishment, The, v. . 569 Fitch V. Redding, . . .170 Fitch, Sewall v. . . . 109 Fitzhugh, Johnson v. . . . 475 Fitzhugh V. Wiman, 274, 352, 354, 355 Fitzmaurice v. Waugh, . . 97 Fitzpatrick, Clapper v. . . 27 Fitzpatrick v. Flagg, . . .393 Flagg, Fitzpatrick v. . . 393 Flagg V. Munger, . . . 325 Flagg, The Bink of Orleans v. . 423 Flagg V. Thurber, . . . 425 Flagler, Brill v. . . . 289 Fleet V. Dorland, . . . .431 Fleury v. Roget, . . 22, 118 Flood ^. Reynolds, . . 22, 23 Foden t). Sharp, . . , 151 FoUett, Titus v 343 22 Foot V. Goodin, ill 313 Foot V. Sprague, . . 385 116 Forbes, Mills v. 217 68 Force v. Haines, . . 109 354 Ford V. Duncan, 323 Ford V. Hurd, . 208 Ford V. Williams, 321 173 Force, Wilson v. . . 84 Forsyth v. Edmeston, 311, 343 368 Fort, Sickles v. . . 494 Fort Edward Paper Mill Company, The, Howland v. ... 37 Fosgate, Allen v. . . . 144 Fosgate v. The Herkimer Manufac- turing Company, . . 359, 451 Foster, Hicks v. , . . 345 Foster, Root v. . . .329, 342 Fowler, Garvey v. . . 170, 454 Fowler v. Kennedy, . . . 466 Fowler J). Sutphen, . . . 418 Fowler v. The New York Indem- nity Insurance Company, 90, 192, 195 Fox, Judd V. .... 352 " Fox, Millington v. . . . 387 Fox V. Vanderbeck, . . . 344 Fox .jj. WoodiTiif, . . . 475 Frame v. McNulty, . . . 4'77 Francesco, Winston v. . . 109 Franklin v. Vanderpool, . 168, 170 Franklin Fire Insurance Company, The, V. Jenkins, . . . 368 Franklyn, Lovelock v. . . 266 Frazee, Dixon v. . . . .89 Frazer, Cobb v. ... 464 Frazer, Pearsall v. . . .168 Frear v. Hardenbergh, . . 109 Freeland, Corwin v. . . . 487 Freeland v. McCuUough, . 94 Freeman, Bailey «. . . 199 Freeman, Higgins v. . . 434 Frisbee, Hunter v. . . . 463 Frost V. Duncan, . . 325, 359 Frost, Robinson v. . . . 454 Frost, Vibert v. . . . 450 Fuller V. Hubbard, ... 67 Fulkerson v. George, . . 488 Fuller V. Lewis, .... 357 Fuller, The Herkimer County Mu- tual Insurance Company v. . 179 Fullerton, Fuller v. . . . 220 Fulton Fire Insurance Company, The, DeForest v. . . 195 Furman, The Herkimer County Bank v 367 Furniss v. Brown, . . 313, 354 Fry V. Bennett, . . 334, 336, 338 Gaffney v. Colvill, Gage, Deifendorff v. 368 258 TABLE OF CASES. XXXI Gale w. O'Bryan, 221 Gallup, Beaeh v. . 136 Gandal v. Finn, . 504 , 509 510 Gaple, YanBensohoten v. 489 Gardiner, Jones v. 66 Gardner, Bellinger v. 208 Gardner, Burgliart v. . 101 Gardner, Churchill v. 120 Gardner v. Clark, 466 Gardner, Corlies v. . 84 Gardner v. Heart, 358 Gardner v. Humphrey, 352 Gardner v. Oliver Lee's Bank, 385 Garner, The Merrimae Manufactur- ing Co. V. . . . 388 Garnet, Cross v. . 304 305 Garnier, Brown v. . 55 Garvey v. Fowler, '170 454 Gary, Leonard v. 143 Garr v. Selden, 492 Gasper v. Bennett, . 405 Gates V. Brower, . 86 Gay V. Paine. . 122 138 Gay, The Kingston Bank v. 496 Gaylord v. Van Loan, 120 Gayne, Show v. . 329 Gazley v. Price, 66 Geller v. Seixas, . '472 473 Gelston, Hoyt v. 312 334 Genesee Mutual Insurance Com- pany, The, v. Moynihen, 2 I, 22 Genet v. Mitchell, 344 Genet v. Tallmadge, . . . 478 George, Fulkerson v. . . ' . 488 George 1;. Harris, . . . .183 Gerard ti. Dickinson, . . . 346 Gereij. Clarke, . . . 373 Gennaine, Williams v. . . 161 German Reformed Church, The, Lovettt) 422 Getman, Packard v. . . . '21 S Getty V. The Hudson River Rail- road Company, 221, 393, 449, 452 Gibson, Dolner v. Gibson, Minet v. Gibson v. "Williams, Gififord, Brownson v. Gifford, McMurray v. . Gihon V. Levy, Gilbert, Copeii. . Gilbert v. Davis, Gilbert v. Dickinson, . Gilbert, Kellogg v. . Gilbert, Lane v. . Gilbert v. Rounds, . Gilborne, Ripple v. Gilchrist, Wood v. . Gilmore v.. Hempstead, Gilman, Wilkin v. . Gillet V. Fairchild, Gillet V. Moody, 123 118 . 340 429 90, 136 474 . 202 455 . 466 302 . 329 329 430 343 26 32 ,52 44 429, 43, 06, 301, 303 . 452 403 384 54 31 494 177 246 453 246 319 484 151 ' 45, 129, 55, 79, 130 Gilligan v. The New York & Har- lem Railroad Company, . , 282 Ginochio v. Orser, . Girard v. Beach, . Given, Spear v. Glass, Gould v. Gleason v. McViekar, Gleasou, Meads v. Gleason v. More, Gleason, Pinney v. Glenn v. Leith, Glenny v. Hitchins, Glover v. Tuck, Goelet V. Assler, Goelet V. Cowdrey, Goings, Green tt. Gooding v. McAllister, Goodnow 0. Bryant, Goodrich, Staples v. Goodwin, Cowie v. . Goodwin, Lippencott v. Gordon v. Sterling, Gorum v. Cary, Goshen & Minisink Turnpik pany, The, v. Hurtin, Gouch, Barclay v. Gould V. Glass, 45, 129, Gould, Squier v. . Gould V. Warner, Gourney v. Wersoland, Graham, Bate v. Graham v. Camman, Graham, Cozine v. . Graham, Lewis v. Graham, Linden v. . Graham v. Stone, Granger v. The Howard Ins. Grannis v. Clark, Grant v. Lasher, Grant v. Vaughan, . Gray, Beach v. Graves, Blackborough v. . Gray, Crookshank v. , Gray v. Nellis, . Great Northern Railway, Harrison, .... 281 Greene v. Clark, . . . 277 Greene, Corning a. . . .131 Green, Dows v. . . ' . 274 Greene «. Goings, . . 122,151 Greene, Handley v. . . . 47 1 Green v. Reynolds, ... 66 Green, Ricketts v. . . 381 Green, Steward v. . . .475 Greenfield, Nodine v. . . 425 Greenby v. Wilcocks, . . . 254 Gregory v. Oaksmith, . . 451 Gridley, Dean v 298 Griffin, Blossom «. . . . 274 Griffin, The Poughkeepsie & Saltjji* < Point Plank Road Company u [l79 210 122 221, 452 182 . 79 98 . 93 430 294, 362 :e Com- 116 63 384 237 210 . 31 405 59, 453 80 285, Co. The 451 347 289 195 254 453 135 98 466 94 342 XXXll TABLE OF OASES. Griffin v. Potter, . 109 Griffin v. The Mayor of Ne-w Y M'k, 295 Griffith V. Reed, . . 164 Griffith, Soovill v. . 280 Griffith, St. John v. . 123 Grimstead, Fay v. 484 Grinnell, Merrill v. . 11 Griswold v. Laverty, 133,135 Griswold v. The National Ins. C 0. 94 Griswold v. Slooum, . 147 Gros, Dygert v. 61 Groshon v. Lyon, . 465 Grosvenor v. Hunt, . 301 Grover, Wakeman v. . . 403 Guild, "Wheeler .v. 133 Gulick, The Bank of Geneva v. IIY, 140 Gunning, Duberly v. ■Si9 Gnnter, Catlin j). 118, 136, 454, 484,485 Gurney v. Kenny, 357 Guthrie, "V'an Wyok v. 448, 490 G-wynne, Burtnett v. 90 Gwynne v. Kettel, 369, 370 H., Wolf); . 494 Hackett, Lawless v. . 506 Haekley, Miller v. 139, 143 Haokley v. Ogmun, . 461 Hagadon, Phillips v. 86, 452 Hagerman, De Motte v, . 351 Hahn, HulU. 147, 148 Haight V. HoUey, 468 Haines v. Beach, . . 423 Haines, Force v. 109 Haire v. Baker, . 222, 449, 453, 481 Hall, Adams v. 290 Hall, Connah v. . . 315 Hall, Dean i). . 148, 263 I-Iall, Dunn v. . . . . 333 Hs,ll V. Farnum, 147 Hall V. Huntley, . . 17 Hall V. Luther, . 298 Hall V. Nelson, . . 467 Hall V. Newcomb, 148 Hall V. Taylor, . . 48 Hall V. Southmayd, . . 59, 98 Hall, Van De Sande v. 306, 493, 494 Hallett V. The Ontario Bank, . 301 Hallock V. Miller, . . .346 Hallock, Smith v. . . 307, 425 Halsey, Bishop v. . . 403, 404 Halsey v. Carter, . . . 494 Halsey, Hauptman v. . . . 364 Halsey, La Farge v. . . . 495 Halsey, Sanford v. . . . 252 Ham, Auchmuty v. . . . 288 Hamer v. McFarlin, . . . 489 Hamilton & Deanesville Plank Road Company, The, v. Rice, . 179 Hamilton, Harlow «... . 232 Hammett, Carter v. . , . 250 Hammond v. Tillotson, . .431 Hammond v. The Hudson River Iron . Jackson, Parker, Lansing v. Parker v. Parmele, . Parker, Strauss v. Parker v. Totten, Parker, Vallett v. Parmelee v. Hitchcock, Parmelee, Parker v. Parshall v. Tillou, Parry, Critohlou v. Parsons v. Bowne, Parsons v. Hardy, Partridge, Lee v. Partridge v. Menck. Patchin Bank, The, Genesee, Paton V. Lent, Paton V. Murray, 135 273 176 471 300 266 494 122, 138 364 463 363 334 351 325 22 479 351 29'.) 29 76 505 430 109 14*4 489 66 26,452 134, 136 . 124 300 66 21 135 373 281 221 387 The Bank of . 42, 44, 464 . 139 423, 425 90, Patterson, Allen v. 66, 58, 59, 60, 80, 93, 102,115, 453 Patterson, Averill v. . . 465 Patterson, Jones «. . . . 97 Patterson v. Wester velt, . • 303 Pattison v. Adams, . . .351 Pattison v. Taylor, . . . 478 Paul, Morgell v 98 Payne, Putnam v. . . . 289 Payne v. Rogers, . . . .291 Payne v. Young, . ' . . 32 Payson, Bridge v. . . 463, 466 Peabody v. Bloomer, . 494, 496 Peabody v. The Washington County Mutual Insurance Company, 451, 452 Peacock t). Rhoades, . . 135 Peake, Lewis v 262 Pearee v. Golden, . . . 359 Pearsall v. Frazer, . . . 168 Pease v. Morgan, . . . 124 Peck, Hutchison v. . . . 348 Peck V. Ingersoll, ... 64 Peckham, Howe v. . . . 295 PeckhaTii v. Smith, 867, 368, 452 Peet, Hatch v. . . . Ill, 112 Peets V. Bratt, . . . .117 Pell, Cunningham v. . . 368 Pell, Talmadge v. ... 44 Pelton V. Woods, . . 338 Pemberton, Maxwell v. . . 289 Penfield, Rich v. . . . 466 Penuiman, Briggs v. . . , 366 Penniman v. The New York Bal- ance Company, . . . 389 Pentz V. Winterbottom, . . 135 Pepper, Hastings v. . . . 278 Peppin, Wiggins v. , . . 101 Peoble, Van Name? v. . 17, 121, 452 People, The, v. Barker, . 219, 472 People V. Bennet, . . 368, 882 People, The, v. Brush, . . 221 People, The, v. Chenango, . .481 People, The, v. Meyer, . . 455 People, The, v. MuUer, . . 882 People, The, t). Norton, . . 219 People, The, v. Richardson, . . 437 People, The, u. Russell, . . 221 People, The, o. Schuyk-r, . . 319 People, The, v. The Assessors of Watertown, .... 44 People, The, v. The Sheriff, . . 465 People, The, The Supervisors of Ni- agara V, . . . . .44 People, The, v. Tilton, . . 244 People, The, v. The Tioga G. P. . 313 People The, ore rel. Crane t;. Ryder, 139, 393, 437, 441, 442, 447, 451 People, The, on rel. Davies v. Cowles, 442 People, The, on rel. Demarest v. Laws, 220 People, The, ore rel. Haws v. Walker, 138, 437 People, The, onrel. Wood v. Draper, 137 Percy, Armstrong v. . Perkins, Campbell v. Perkins, Day v. . Perkins, Savage v. . Perine, Barnes v. Perry, Canal Fund v. Perry v. Perrj', Perry v. Truefit, Person v. Warren, Peters, Phillips v. Peters, Wheaton v. Peterson v. Humphrey, Petrie v. Shoemaker, . Pettee, Dunham v. . Phelps, Carters. . Phenix i). The Commissioners of Emigration, . . . 390, 391 Phenix Bank, The, Little v. . . 168 . 262 273, 475, 477 . . 421 351, 354 181, 182, 283 182 . 445 387 . . 47 479 . 104 386, 387 . 47 235, 240 . 130 xlii TABLE OF CASES. 358 Phenix Bank, The, Willetts v. 167, 173 Philadelphia & Beading Railroad Company, The, u. Derby, . . 281 Phillips V. Fielding, . Phillips V. Bericlc, Phillips J). Hiigadon, Phillips V. Peters, Phillips V. Price, Phillips, Pringle v. Philpott jj. Bryant, Picking, McCormick Piddington v. Plow, Pierce, Batterman v. Pierce, Connolly v. Pierce v. Drake, . Pierce, St. John v. Pierce v. Van Dyke, Pierson v. Boyd, Pierson v. Cooley, Pierson v. Townsend, Pike, Marsh v. Pike V. Van Wormer, Pinero v. Judson, Pinkerton v. Bailey, Pinkney v. Wallace, Pinney i'. Gleason, . Pinnej', Wardell v. Pitt V. Donovan, Place, The Mechanics' Banking As- sociation V. Piatt, Townsend v. Plets V. Johnson, . Plummer v. Plummer, 385, 385, 94 . 79 86, 452 . 479 210 357 157 477 387 494 67 84 368 S53 147 136 316 421 452 133 . 451 . ' 177 124, 126 3,46 44 462 118, 137 504, 506, 513 Polly «. TheSaratoga & Washington Railroad Company, 36, 138, 231 Pomeroy v. Ainsworth, . . 232 Pond, Fisher v. ... 299 Poppenheimer, Leopold v. . . 266 Portal, Ord v 126 Porter v. Bleiler, ... 97, 98 Porter v. Rose, .... 67 Porter v. Williams, ... 51 Portsmouth, &c,, Railroad Com- pany, The, Sayer v. . . 278 Post V. Coleman, . . . 606, 514 Post, State V 17 Potter, Chappell v. . . .385 Potter V. Crandall, . . . 423 Potter, Davis v. . . . .28 Potter, Griffin v. . . . 109 Potter V. Lansing, . . . 203 Potter V. Luther, . . . 298 Potter, The Western Reserve Bank v. 425 Potter V. Thompson, . . . 342 Poughkeepsie Mutual Insurance Company, The, Dey v. . . 191 Poughkeepsie & Salt Point Road Company v. Griffin, . . 179 Powell, Bedell v. ... 266 Powell, Davison ji. ', . . 17 Powers, Tappan v. . , . 311 Powell V. Waiers, Pownal V. Ferrand, Pratt V. Adams, Pratt, Benton v. . Prescott, Cornell v. Prescott V. Hull, Prescott v. Trueman, 117 61 133 304 421 91 263 President of the U. S. Bank, The, v. Haskins, .... 41, 42 Preston, Healy D. . . 511,516 Price, Gazley v 66 Price ti. McClare, . 117,139,140 Price, Phillips j; 210 Priestman, De Lisle v. . , 284 Prince v. Down, .... 109 Prindle «. Caruthers, . 134,447 Pringle v. Phillips, . . 353, 357 Prior, Rosewell v. . . . 290 Provost, Mann v. ... 431 Proprietors of Southhold v. Horton, 41 Prosser, Bush v 489 Pugsley V. Aiken, ... 97 Pulver, Camp v. . . . .84 Purdy, Bunoe v. . . . 506 Purdy V. Carpenter, . . . 453 Purdy V. Doyle, . . 373 Purdy V. Upton, . . 504, 506, 510 Purdy t;. Vermilyea, . 117,133 Purple V. Horton, . . . 344 Putnam, Ash v. . . . . 84 Putnam, Ellsworth v. . . . 326 Putnam ij. Payne, . . . 289 Quin II. Tilton, . Race, Miller v. . Radcliff, Abeel v. Radde v. Ruckgaver, Radin, Angus v. . Ramscott, Wright v. . 26,221 135 98 487 289 289 Randall, Hyslop v. . 303, 305, 308 Randall, Roberts v. . . 313, 353 Rankin v. Deforest, . . . 472 Rankin *. McCnllagh. . . 284 Rapalee, The First IBaptist Socie- ty ); 180 Rasback, Myers v. , . . 429 Ratean v. Bernard, . . . 394 Rathbone, Douglass v. . . 198 Eathbun v. Emigh, . . . 344 Rathbun, Hoag v. . . . 421 Ray, Kerrigan v 352 Raymond «. Bearnard, . . 65 Raymond, Blaisdell v. 27, 335, 338, 340 Raymond, Caldwell?;. 333, 335, 33,7, 341 Raynor v. Clark, .... 260 Rawney, Beach v. . . 343, 346 Rawson v. Dole, .... 303 Eawson v. Johnson, ... 67 TABLE OF CASES. xliii Eeddie «. The North "Western Rail- road Company, . . . 292 Redding, Fitch v. . . . 170 Redman v. Hendricks, . . . 354 Reed v. Drake, . . . 221 Reed, Griffiths 154 Reed, Hill «. . ... 119 Regina v. Bloxham, ... 29 Reid V. Marble, . . . 426 Eeimer v. Nagel, .... S53 Reinhardt, Willard v. . . 286 Remer, The Camden & Amboy Railroad Company v. . .41 Remington, Davis v. . ; 494 Renard ti.-TIargous, 213, 214, 215, 216 Eenner v. Marshall, . . . 465 Republic of Mexico, The, i;. Arran- gois, 465 Rensselaer Mutual Insurance Com- panj', The, Kichols v. . . 203 Rensselaer & Saratoga Railroad Company, The, Hart v. 273, 275, 276, 277 Reynolds, Flood v. . . 22, 23 Reynolds, Green v. . . . 66 Reynolds v. Lounsbury, . .353 Reynolds v. Sholer, . . . 315 Reubens tr. Joel, . . . 91,403 Rew V. Barber, . . . 261 Rhodes v. Evans, .... 423 Rhodes, Peacock w. . . . 135 Ricart v. Townsend, . . . 433 Rice, Vail v 240 Rice, The Hamilton & Deanesville Plank Road Company v. Rice V. Wright, Rich V. Baker, Richards v. Blairs, . Richardson, Backus v. . Richardson o. Craig, Richards v. Edick, Richardson, Metcalfe v. Richardson v. The People, Richardson v. Wilton, Eichley, Diederick v. Rick V. Penfield, Rickert v. Snyder, Ricketts v. Green, Riel, Williams v. . Ring, Root V. . Ripple V. Gilbome, Ritz, Lettman v. Rivers, Adams w. . Robb V. Montgomery, Roberts v. Morrison, Roberts v, Randall, . Roberts, The Mechanics & Traders' Savings Institution v. . . 495 Robertson, Lundie v. . . 143 Robertson v. March, . . . 182 Robertson, Pardee v. . . 299 . 179 343 . 351 453 . 345 208 . 453 143 . 437 22 . 202 466 262, 264 381 26,28 334 429, 430 333, 344 . 323 67 117,140 313,353 . 455 452 . 86 466 . 368 221 . 27 231 . 66 Robinson v. Frost, Robinson v. Judd, Robinson, Lovett v. Robinson, Mayliew v. Robinson v. Smith, Robinson, Spier v. Robinson, Springsted v. Roby, Turner v. Roberdeau, Hanson v. Rochester, Loekport, & Niagara Falls Railroad Company, Tlie, Clarke •« 415 Rochester v. Taylor, . . 135, 483 Rochester & Syracuse Railroad Company, Curtiss v. . 282 Rochester & Syracuse Railroad Company, The, Sheffield v. . 297 Rochester . The New York Central Mills, 1 Abbotts' Pr. R., 187) ; or respect- ing which he necessarily has means of information within his reach 1851, Hance «. Rumming, 2 E. D. Smith's C. P. R. 48 ; S. C, 1 Code R., If. S., 204; Sp. T., 1855, Chapman «. Palmer, 12 How. Pr. R, 37 ; see also Nichols V. Jones, 6 How. Pr. R., 355. The only case to the contrary is Caswell V. Bushnell (Eew York Oen. T., 1852, 14 Barb., 393 ; S. C, 7 How. Pr. R , 171) ; with which com- pare Lefferts v. Snediker {New Yorh Oen. T., 1854, 1 Abbotts' Pr. R, 41). There is some conflict among the cases as to the proper remedy to be sought by plaintiflf for such evasive pleading. A demurrer, it is held, will not lie. Ketcham «. Zerega, 1 E. B. Smith's C. P. R, 553. In one of the cases an answer of this de- scription has been regarded as sham, — i. e. false, — and liable to be strieTcen out on motion under section 152 of the Code. Hance ti. Rumming, 2 E. B. Smith's C. P. R, 48 ; S. C, 1 Code R., N. 8., 204; Leach «. Boynton,-3 Abbotts' Pr. R., 1. So, also, an alternative motion to strike out the answer as sham, irrelevant, or frivol- ous, has been entertained. Richard- son V. Wilton, 4 Sandf., 708 ; and see Fleury v. Roger, 9 How. Pr. R., 215 ; Flammer «. Kline, ib. 216. A motion to strike out an answer as fri/uohus has also been entertained, without any examination of the ques- tion whether the remedy for frii>ol- ousness in a defendant's pleading is not confined to the motion for judg- ment under section 247 of the Code. Wesson v. Judd, 1 Abbotts' Pr. R., 254; Morrow v. Cougan, 3 ib. 328. The majority of the cases hold, how- ever, that the plaintiff's remedy in these cases is, by motion for judgment on the ground that the answer is frivolous. The Genesee Mutual In- surance Company ■». Moynihen, 5 How. Pr. R., 321 ; Nichols v. Jones, 6 ib., 355, approved in Winne ». Sickles, 9 ib., 217 ; Thorn ». The New York Central Mills, 10 ib., 19 ; Shearman ®. The New York Central Mills, 1 Abbotts Pr. R, 187 ; Leflferts n. Snediker, ib., 41; Chapman v. Palmer, 12 How.Pr. R, 37; Floods. Reynolds, 13 ib., 112 ; and see Tem- ple ■». Murray, 6 ib., 329. In respect to the language in which the qualified denial should be made, ^ the best advice we can give is that the pleader should follow accurately THE ANSWER. 23 Counter-claim. Demand of judgment. Affirmative relief. I. That, cfec. \_Set out the cause of action that is set up as a counter-claim.] Wherefore, the defendants demand judgment (x) for [State the affirmative relief to which the defendants may suppose themselves entitled-] [Signature.] [ Yerifioation.] the language of the Code, as in the form given in the text ; neither omitting nor adding anything. Slight departures from the language pre- scribed by the Code, have been held fatal defects in several cases ; the courts considering that to hold de- fendants to the language of the act is better than to spend time in weigh- ing words to determine whether those used by the defendant are nicely equivalent to those allowed to him, or not. Thus, an averment that the " de- fendant is ignorant ofwhetTier" &c., is no denial of the averment referred to. Wood V. Staniels, 3 Gode R, 152. So of an averment that in respect to certain allegations of the com- plaint, defendant " has not sufScient knowledge or information whereon to found a belief Mott v. Burnett, 1 Code R., N. S., 225 ; approved as to this point, on appeal, 2 E. B. SmiiKs C. P. R, 50. So of an averment that defendant " has no hnowledge sufficient to form a belief" whether, &c. Ketcham n. Zerega, 1 E. D. Smith's C. P. R, 553 ; Edwards v. Lent, 8 Mow. Pr. R., 28. So of an averment that defendant " has no recollection suftcient to form a belief" whether, &c. Nichols v. Jones, 6 Eow. Pr. R, 355, So of an averment that defendant " is not informed and cannot state " whether, &c. Elton v. Markham, 20 Pari., 343. It is not uncommon for pleaders, after making the denial in the lan- guage of the Code, to add the words, "and therefore denies the same," — or, "and therefore leaves the plain- tiflf to make such proof thereof as he may be advised ; " or words of like effect. All such additions are super- fluous, and would be better omitted. The mere denial of "knowledge or information sufficient to form a be- lief," has all the effect of a denial of the fact alleged. No other words are useful. Flood v. Reynolds, 13 Mow. Pr. R, 112. (j) The Code, as prepared by the Commissioners, did not contemplate the system of counter-claim. Hence its provisions do not require the answer to contain a statement of the j udgment demanded by the defendant. But since the provisions for counter- claims have been engrafted upon it, it seems essential to a consistent sys- tem as well as intrinsically proper, that th3 defendant should be re- quired to state what affirmative relief he considers himself entitled to receive. 24 FORMAL PARTS OF PLEADINGS. The Reply. Denial of counter-claim. New matter in defense. III. — Formal Paets of the Eeply. No. 5. SUPEEME COURT, Coanty of {Name of County. \ {Names of all the plaintiffs,} Plaintiffs, against {Names of all the defendants,'] Defendants. The reply of the plaintiffs to the answer of the. defendants, {Names of the answering defendants] herein, shows to this court : — As to the first counter-claim, (y) First : That they severally deny each for himself that he has any knowledge or information sufficient to form a belief as to the allegations of the answer respecting the same. Second : For a second defense to said counter-claim, the plaintiffs show, I. That, &c. n. That, &c. As to the second counter-claim ; — Third: That the plaintiffs deny each and every allegation of the answer respecting the same. {Signature.] { Verification.] (y) It is only to new matter in the that the plaintiff can reply. Code, answer, constituting a counter-claim, § 153 ; ante, 4. THE DEMURRER. 25 Demurrer to complaint, or to one cause of action. IV. — ^Formal Pakts of the Demtjeeeb. No. 6. SUPEEME COURT, County of \Nam6 of County.] {Name of the plaintiff ^ Plaintiff, against \Na7ne of the defencUmt^ Defendant, The defendant (z) demurs to tlie complaint herein, and for the grounds of his demurrer states, that it appears upon the face of the complaint, I. That the complaint does not state facts sufficient to constitute a cause of action. [Signatitre.] (z) The formal parts of the plain- parts of the defendant's demurrer to tiff's demurrer to a counter-claim or the reply, are the same as above, mu- other new matter pleaded as a de- tatis mutandis. fense in the answer, and the formal See chap. Demureeks, post. CHAPTER III. VERIFICATIONS, (a) I. By Sole Plaintiff oe Defendant, a !N"at0ral Person. II. By two Defendants not United in Interest, but Pleading Together. III. By one of Several Persons United m interest, and Pleading Together. IV. By an Officer of a Corporation Plaintiff or De- fendant. V. By the Attorney, — "When the Party is not Within THE County. VI. By the Agent or Attorney. 1. When the action or defense is founded on a written instru- ment for the payment of money only, and it is in the possession of the Agent or Attorney. 2. When all the material allegations are within the personal knowledge of the Agent or Attorney. (a) A defect in the verification of a sett, 10 ii., 184; Hubbard d. The complaint does not render the com- National Protection Insurance Com- plaint irregular. Even if the defect pany, 11 ib., 149, 152; IT. Y. . is apparent upon the face of the veri- rior Ct.^ Williams v. Riel, 11 ib., B'Ji.) fication, it only operates to relieve the If the defect be latent, the defend- defendant from the obligation to ver- ant's relief must be by motion. (Gil- ify his answer. Fitch v. Bigelow, 5 more v. Hempstead, 4 Sow. Pr. B., How. Pr. JR., 237 ; Van Home, Presi- 153. dent, &c., 11. Montgomery, 5 ii., 238 ; The Code of 1848 (§ 133) provided Lane v. Morse, 6 ib., 394 ; Waggoner that the verification to any pleading u. Brown, 8 iJ., 212; Quin t). Tilton, might be omitted where the party 2 Puer, 648; Strauss ■». Parker, 9 would be privileged from testifying Sow. Pr. B., 342 ; Treadwell v. Fas- to the same matter. The Code of BT PARTIES. 27 'WTien the defendant is privileged from verifying. Venue. I. — By Sole Plaintiff oe Defendant (b) a Natural Person. No. 7. City and Oounty of New York, ss. (c) A. B., the plaintiff [or, defendant] above named, being 1849 omitted this provision altogeth- er. The Code of 1861 (§157) pro- vides that " the verification may be omitted when an admission of the truth of the allegations might subject the party to prosecution for felony." The act of 1854 (Laws of 1854, p. 153) provides that the verification of any pleading may be omitted in all cases where the f arty called upon would be privileged from testifying as a witness to the truth of any mat- ter denied by such pleading. The only authority under the Code of 1848 is Clapper B. Fitzpatrick (Mbnt- gomery Sp. T., 1848, 1 Code B., 69), in which it was held that it was enough to excuse any defendant from verifying, if any part of the answer contained statements to which he or any of his co-defendants would be privileged from testifying. Under the Code of 1849, which contained no provision on the subject, it was held that by the Constitution {Const, Art. 1, § 6), and according to general principles of law, where a verified answer would subject the defendant to a criminal prosecution, he might, in the absence of any statutory pro- vision, serve a verified answer in which he might decline to answer such matters, upon that ground, and that such a refusal would be treated as a denial. Hill v. Muller, 2 Sand/., 684; White ». Cummings, 3 ik, 716 ; 8. G., 1 Code R, N. S., 107. The decisions under the Code of 1851 are Thomas v. Harrop (7 Sow. Pr. R, 57), and Springsted v. Robinson (Monroe Sp. T., 1853, 8 ib., 41). In the latter case a verified answer in the form prescribed by Hill v. Muller, and White v. Cummings (supra), was held frivolous, and it was said that when the court could not see from the pleadings themselves that the ad- mission of the allegations in the com- plaint would subject the defendant to a criminal prosecution, he might shew that fact by affidavit. The onlv cases under the act of 1854, are Scoville^.New (Albany Sp. T.,1855, 12 Sow. Pr. R, 319) ; Lynch v. Todd, (Steuben Sp. T., 1856, 13 ib., 547) ; Wheeler v. Dixon (Washington Sp. T., 1856, 14 ib., 151) ; Blaisdell v. Raymond (Rew York Sp. T., 1857, 5 Abbotts' Pr. R, 144) ; and they settle the rule to be, that if the court can see from inspection of the plead- ings that an admission of any allega- tion in the complaint would subject the defendant to a criminal prosecu- tion, the answer may be unverified. Where that does not appear from the face of the pleadings, the defend- ant must establish his right to ex- emption by affidavit or otherwise. (5) This and the following forms are appropriate for Answers and Re- plies as well as for Complaints, by substituting either of those words for the word "complaint," and in the case of an answer, the word "defend- ant " for " plaintiff" (c) The venue is a material part of the verification, and its omission ren- 28 TERIFICATIONS Form of averment of truth of pleading. Jurat. Signature. duly sworn says that the foregoing complaint [or, answer] is true (d) to his own knowledge, (e) except (f ) as to those mat- ters therein stated on information and (g) belief, and as to those matters he believes it to be true, (h) [Signatwe.] (i) Sworn before me, ( j) this first day of September, 1857. (k) (Signed) John Doe, Commissioner of Deeds. ders the affidavit a nullity. Ontario Sp. T., 1852, Lane v. Morse, 6 How., Pr. B., 394; and see also Cook v. Staats, 18 Barl., 407. It sufficiently shows the place where the affidavit was taken. Belden v. Devoe. 12 We7id., 223, 225 and note; 3 Hill, 461. (d) A verification alleging that "the same is substantially true," &c., • was held insufficient as containing a qualification that was a material de- parture fi-om the requirements of the Code. Steuben Sp. T., 1853, Wag- goner V. Brown, %How. Pr. R, 213. («) In Southworth v. Curtis (Pu- laski Sp. T., 1851, 1 Code R, W. S., 412 ; S. C, 6 Sow. Pr. R, 271), a verification omitting the words "to his knowledge." was held sufficient ; but the same defect was adjudged fatal in Williams v. Eiel (K Y. Supe- rior Ct, 1855, 11 How. Pr. R., 875), and in Tibballs v. Selfridge (Colum- bia Sp. T., 1856, 12 ib., 64). In Van Home V. Montgomery (Oneida Sp. T., 1853, 5 Sow. Pr. R, 238), an allegation that "the same is true according to the best of his hnowledge and belief" was held insufficient. (/) It has been held in the New York Superior Court, that where a pleading stated nothing on informa- tion and belief, this exception not only might but ought to be omitted from the verification. Kinkaid n. Klpp, 1853, 1 JDuer, 692, and see note (h) infra. (g) In the Code of 1849, the word " or " stood in the place of " and ; " and under that Code it was held that a verification using the word "and" instead of "or " was defective. Al- bany Sp. T., Davis ®. Potter, 1849, 4 Sow. Pr. R, 155. (A) It is a general practice to use a form like the one given above, as well for pleadings which are entirely on information and belief, as well as those that are direct, or partly direct, and partly on information and belief. But in Harnes ii. Tripp (Mw Yorh Sp. T., 1857, 4 AbbotW Pr. R, 232), it was held that when the complaint was entirely upon information and belief, the proper form of the verifi- cation was "deponent believes the same to be true, all the allegations therein being made on information and belief." See also note (/) supra. BT PARTIES. 29 Joint verification. Requisites of the Jurat. II. — ^Bt Two Defendants not United in Interest, but Pleading Together (1). No. 8. [ Venue.] A. B., and C. D. (m), the defendants [or, two of the defendants] above named, being severally (n) duly sworn, say each for himself that the foregoing answer is true (o) to his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes it to be true (p). [Jurat.'] [Signatv/res.] HL — By One of Several Persons United in Interest, and Pleading Together. No. 9. [ Yenue.] A. B. one of the plaintiffs [or defendants], above named, being duly sworn, says that he is acquainted with the It was held in the case of Tnis- cott V. Dole (Moiga/ra Sp. T., 1851, 7 Sow. Pr. R, 221), that all allega- tions in pleading should be made directly and not on information and belief; and a motion to strike out the words on information and belief as redundant, was granted. This view has not been generally accepted, and the settled practice is to discriminate between the allegations by that phrase. (i) The verification must be sub- scribed by the party making it. Laimbeer v. AUen, 2 Sandf. S. 0. R. 648; S. C. 2 OodeRU. (j) The omission of the words "before me " in the jurat of an affida- vit was held a fatal defect in Regina V. Bloxham (6 Q. B. R, 528 ; S. 'G. 51 Rncf. Com. L. R, 526). (k) The jurat of an affidavit should state the day on which it was sworn. Doe V. Roe, 1 Chit. R., 228 ; S. C, 18 Rng. Com. L. R, 69. (Z) Parties pleading together must all join in the verification, unless they are united in interest. Andrews v. Storms, 5 Sanclf. 609; Youngs v. Seeley, 12 Sow. Pr. R, 395. See Form No. 9 for verification by one of several parties united in interest. (to) The names of all the deponents should be mentioned. Anonymous, 2 Chit. R, 19 ; S. 0. 18 Mg. Com. L. R, 235. {n) An affidavit made by several should shew that the deponents were severally sworn. Pardoe «. Territt, 5M.&0., 291 ; S. 0. 44 Eng. Com. L. R, 159. (o) For authorities see notes to Form No. 7. {p) As to the form of an answer by several defendants denying knowl- edge or information sufficient to form 30 VERIFICATIONS By on* of several parties acquainted with the facts. By officer of Corporation. facts stated in tlie foregoing complaint (q) \or answer] ; that the same is true (r) to his own knowledge, except as to those matters therein stated on information and belief, and as to those matters he believes it to be true. [Jurat.'] [Signature.] IV. — By an Officee ' of a Coepoeation Plaintiff oe Defendant. No. 10. [ Venue.] A. B., President of Company, plaintiffs above named, being duly sworn says that the foregoing complaint is true (s) to his own knowledge, except as to those matters therein stated on information and belief, and as to those mat- ters he believes it to be true. Deponent further says (t), that the reason why the verification is not made by the plaintiffs is that they are a corporation ; that this deponent is an officer of the same, viz., president, and that his knowledge is derived from having witnessed the transactions mentioned in the complaint, [or from the admissions of the defendant, or other sources of personal knowledge, and where a portion or all of the material allegations are ujpon information and T)elief add, or substitute the following clause : — that the grounds of his belief are information communicated to him by the agents of said corporation, or other sources of information.] [Jurat.] ■ [Signature.] a belief, see Formal Parts of the poration is a person other than the Answer ; ante, Form No. 4. party in such a sense as to require (j) Whether it is necessary for his verification to state the reason and the aflSant to state that he is ac- show his knowledge or grounds of quainted with the facts, has not been information. Oneida Sp. T., 1851; decided in any reported case. It is Van Home, President, &c. v. Mont- the safer practice to state it. gomery, 5 Sow. Pr. R., 238. It is (r) For authorities see notes to well settled that an officer is not a Fm-m No. 7. party to an action by or against his (s) For authorities see notes to corporation, and there seems to be no Form No. 7. reason why he should be considered (0 See Form No. 11, note (y), post, the party for the purposes of verifi- The question has been raised, but not cation, decided, whether the officer of a cor- BY THE ATTORNEY. 31 Absence of party. Attorney's knowledge. Grounds of his belief. V. — By the Attoenet when the Paety is not Within the County, (u) No. 11. [ Venue.'] A. B., being duly sworn, says that he is the attorney [or, one of the attorneys (T)] of the plaintiff in this action; that the foregoing complaint is true (\r) to his own knowledge except as to those matters therein stated on infor- mation and belief, and as to those matters he believes it to be true. Deponent further says (x) that the reason the verifica- tion is not made by said plaintiff is that be is not within the county of which is the county where deponent resides ; and that this deponent's knowledge is derived from the admissions of the defendant to this deponent [or other sources of personal knowledge, and where a portion or all the material allegations are on information and ielief, add or substitute the (u) When the party is not within the county where the attorney re- resides, a verification made by the attorney is good, though the action be not on a written instrument for the payment of money only, and in his possession, and he has no personal knowledge of the truth of the alle- gations of the pleading. Lefever v. Latson, 5 Sand/., 660 ; Dutchess 8p. T., 1852, Roscoe v. Maison, 7 Sow. Pr. R, 121 ; Albany Sp. T., 1852, Stannard v. Mattice, 7 How. Pr. i?., 4 ; K Y. Sp. T., 1855, Drevert v. Apsert, 2 AbbotW Pr. B., 165 ; Monroe Sp. T., 1855, Smith v. Rosenthall, 11 How. Pr. B., 4,4:2 ; Gourney v. Wer- soland, 1854, 3 DueT, 613 ; Dixwell V. Wordsworth, 2 Code B., 1. (®) See Form No. 12, note (a). (w) For authorities see notes to Form No. 7. (a;) In allcases where a verification is necessary, in order to dispense with a verification by the party, the per- son who makes the affidavit, stating that the facts set forth in the plead- ing are true of his own knowledge, must state what knowledge he has on the subject; and when he states that he believes the facts alleged on infor- mation and belief to be true, he must state the grounds upon which his be- lief is founded : and in addition to this, he must state why he makes the affidavit, and not the party. Al- bany Sp. T., 1852, Stannard v. Mat- tice, 7 How. Pr. B., 4 ; Albany Sp. T., 1854, Treadwell v. Fassett, 10 ib., 184 ; Frie Sp. T., 1855, Hubbard v. The National Protection Insurance Company, 11 ib., 149 ; Albany Sp. T., 1856, Meads v. Gleason, 13 ib., 309 ; disapproving of Smith v. Eosen- thaU, Monroe Sp. T., 1855, 11 ib., 442. 82 VERIFICATIONS Description not an averment. Fact of agency. Either of several agents may verify. following clause; — that the grounds of his belief (y) are information received from the letters of the plaintiff, or other sources of information.] [Signature.'] [Jurat.] YI. — By the Agent oe Attoenet. 1. When the action or defense is founded on a written instru- ment for the payment of money only, which is in his pos- session. No. 12. [ Venue.] A. B. being duly sworn says, tbat he is the agent (z) [or, one of the agents, or, attorney, or, one of the attorneys] (a) for the plaintiff in this action ; that the foregoing complaint [or, answer] is true (b) to his own knowledge except as to those matters therein stated on information and belief, and as to those matters he believes it to be true. Deponent further says (c), that the reason why the verification is not made by the plaintiff [or, defendant] is that the action [or, defense] (y) Whether a verification of a 177; Staples v. Fairchild, 3 Gomst., pleading on information and belief, 41,44; Payne D.Young, 4 /SfeM., 158. made by an attorney or agent, and (a) It is not necessary that a claiming to state hnowhdge when he pleading should be verified by the only has information, is good, Query f agent who knows' most about the Albany Sp, T., 1856. Wilkin v. matter. An attorney may verify a Gilman, 13 Row. Pr. i?., 225. pleadingonbehalf of his non-resident (z) Words inserted before the client, although it appears that the phrase "being duly sworn says," are client has a resident agent, and that mere matters of description. So that it is through him that the attorney in a verification in these words, "A. B., has obtained his information. New President of The Company, Yorh Sp. T., 1855, Drevert v. Apsert, plaintiflfs above named, being duly 2 Ahiotts^ Pr. i?., 165. sworn, &e.," the statement of the (b) For authorities, see notes to official character of the affiant would Form No. 7. not be treated as a sworn statement. (c) See Form No. 11, note (y). Fie Parte Bank of Monroe, 7 Sill, BY AGENT OE ATTORNEY. 33 Instrument in agent's possession, &a. Allegations within his personal knowledge. is founded upon a written instrument for the payment of money only, and sucli instrument is in the possession of deponent ; and that his knowledge is derived from said instrument and also from the admissions of the plaintiff to this deponent [or, also from having witnessed the execution and delivery of the same, or oilier sources of personal hnowledge, and where a portion or all of the material allegations are on information and belief, add or substitute the following clause : — that the grounds of his belief (d), are the state- ments of the plaintiff to this deponent, or other sources of informationl. [Jurat.'] [Signature.] 2. Where the material allegations are within his personal knowledge. No. 13. [ Venue.] A. B. being duly sworn, says that he is the agent [or, attorney, or, one of c&e. (e)] for the plaintiff [or, defendant] in this action, that the foregoing complaint [or, answer] is true (f) to his own knowledge except as to those matters therein stated on information and belief,' and as to those matters be believes it to be true (g). Deponent further says (h), that the reason why the verification is not made by the plaintiff [or, defendant] is that all the material allegations of said com- plaint [or, answer] are within the personal knowledge of this deponent ; and- that his knowledge is derived from the admis- sions of the defendant to this deponent [or other sources of personal knowledge]. [Jurat.] [Signature.] {d) See Form No. 11, note (y). ig) See Form No. 7, note (h). (e) See Form No. 12, note (a). {Ji) See Form No. 11, note (x). (f) For authorities, see notes to Form No. 7. 3 CHAPTER IV. COMPLAINTS. SECTION I. Averments in actions iy wnd against particular persons, showing their official character, or capacity to sue and, le sued (i). I. — Bt Intant Plaintiff, showing Appointment of Guaed- lAN AD LITEM. II. — Br Makeied Woman, showing the Sepaeate Peop- EETT EESPEOTING WHIOH SHE SUES. 1,' In an action on a note or other contract for tha payment of money only. 2. In an action other than on a contract for the payment of money only. III. — Against Husband and Wife, on a debt of the wife conteacted before maekiage. 1. Where the husband has acquired, by an awie-nuptial con- tract, separate property of his wife. 2. Where the husband has acquired after marriage, that which was before marriage the property of his wife. 3. Where the husband has acquired that which became the separate property of his wife after marriage. (i) To preserve space for prece- capacity to sue and be sued, of offi- dents comprising as great a variety cers, artificial persons, &c. ; and thus as possible of statements of causes of a repetition of these averments in the action, we here present, together, the forms following is avoided, necessary averments showing the AVERMENTS OP CHARACTER AND CAPACITY. 35 Infant Plamtiff. Appointment of Guardian ad litem. IV. — By Coepoeation. 1. Manufacturing, Mining, Mechanical or Chemical Company. 2. Plank Road or Turnpike Company. 3. Banking Association suing in its associate name. 4. Banking Association suing in the name of its president. 5. Foreign Corporation. V. — Br Joint-stock Company suing in the Name of an Officee. VI. — By Committee of a Lunatic oe Habitual Deunkaed. Vii. — By Administeatoe. VIII. — By Execdtoe. IX. — ^By Keoeiver. 1. Receiver appointed in supplementary proceedings. 2. Receiver appointed pending litigation. 3. Receiver of dissolved corporation. I. — By Infant Plaintiff, showing Appointment of Guardian AD litem. No. 14. \J¥ame of court, c&g.] Nathaniel Hulbert, an infant, by- Jesse Hulbert, his guardian, Plaintiff, against William Young, defendant. Tbe complaint of tbe plaintiff shows to this court : — I. That he is an infant under the age of twenty-one years, and that on the day 185 , at , upon 36 COMPLAINTS. Meaning of " Duly." Action by married woman respecting separate property. application duly made ( j) on his behalf, the said Jesse Hulbert was, by an order of this court [or, by an order made by Hon. , a judge of this court ; or, by Hon. county-judge for County], duly appointed the guardian of the plaintiif for the purposes of this action (k). II. [Set forth cause of action.] (1). II. — By Maebied Woman (m), showing the Separate Peop- EKTY RESPECTING WHICH SHE SUES (ll.) I. — In an action on a note or other contract for the ^payment of money only. No. 15. [Title of the cause.] The complaint of the plaintiif shows to this court : — ■ (j) That the appointment was made upon the plaintiff's application, might be considered as suflSciently implied by the averment that the guardian was duly appointed. — See, as to the force of the word "duly" in pleading, Polly ii. The Saratoga & Washington Railroad Company, 9 Barb., 449 ; and The People on rel. Haws «. Walker, 2 Abbotts' Pr. R, 421. (i) The complaint of an infant by his guardian, must set forth the ap- pointment of the guardian with cer- tainty as to time, place, and power of the appointment. 2 Saund., 117, /. note 1 ; .1 Lev., 224 ; 2 Arch. Pr., 940 ; Stanley v. Chappel, 8 Cow., 235 ; Hulbert «. Young, 13 Eow. Pr. P., 413 ; and see Gillett «. Fairchild, 4 Pen., 83 ; Beach s. King, 17 Weyid., 197; and White v. Low, 7 Barb., 204, as explained by White ». Joy, 3 Eern., 83. (I) See Complaints generally, post. It is the infant, not the guardian, that is the plaintiff. And his com- plaint may be subscribed by the attor- ney as "attorney for the- plaintiff." 2 BurrilVs Pr., 80. (to) a married woman may now sue and be sued respecting her separate property as if she were a feme sole. We do not consider it necessary for her complaint to show that the action concerns her separate property, unless it appears by the complaint that she is a married woman, which usually need not be the case. If she sues as if she were a feme sole, and the answer pleads her coverture, the fact that the sub- ject of the action was her separate estate might be proved under that issue. If, however, the answer con- tains a counter-claim to which she desires to reply, pleading coverture, her reply should also contain the averments of which the form is given above. {n) The husband no longer need be joined in such an action, nor need AVERMENTS -OF CHARACTER AND CAPACITY. 37 Marriage. Consideration of contract, payment out of separate property. [Set forth cause of action.'] That on the day of 185 (o), the plaintiff intermarried with one J. S., whose wife she now is. That the consideration of the said note [or., of the said transfer (<>/•, indorsement) of said note to the plaintiff] was the payment by the plaintiff to the maker [or, indorser or assignor] thereof, of the sum of , which said sum was [or, was the principal and interest of a certain sum which was], at and before the time of her said marriage, owned by her ; and thereafter was her sole and separate property, and* so continued until the time of such payment ; and that said note thereupon became and ever since has been her sole and separate property (p). [Or, That the consideration of the said note [or, of the said transfer {or indorsement) of said note to the plaintiff] was the payment by the plaintiff to [the maher, indorser, or assignor] of the sum of dollars, which said sum became [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 [or persons] other than her said husband, to wit, one J. S., and [continue as above, from the aster ish], [Or, That the consideration of [c6c. as above], which said sum was the proceeds of certain property, which was at and before [cbc. as above], [or, which said sum was the proceeds of certain property which became after [c&c. as above]. the wife in any case appear by the wife is said to be insufficient, guardian or next friend. Code, § 114. The complaint should show how it (o) In many cases the date of the became so. Sp. T., 1853, Howland marriage will be necessary, to bring «. The Fort Edward Paper Mill Com- the case within the act of 1848. pany, 8 How. Pr. R, 505. And see (p) An averment that certain Staley v. Barhite, 2 Gai., 221. property is the separate property of 38 COMPLAINTS. That the property in suit is the separate property of the plaintiff. 2. In, an action other than on a contract for the payment of money only. No. 16. [Title of the cause.] The complaint of the plaintiff shows to this court : — [Set forth cause of action.] [State marriage, as in Receding Form.] That the property hereinbefore mentioned was, at and before the time of her said marriage, owned by her, and ever since has been her sole and separate property. [Or, That the property hereinbefore mentioned was after her said marriage bought by her with the proceeds of certain property, which was at and before the time of her said marriage owned by her ; and that ever since the same has been her sole and separate property.] [Or, That the property hereinbefore mentioned, became after her said marriage, her sole and separate property, by inheritance [or, gift, grant, devise or, bequest] from a person [or, persons] other than her said husband, to wit, one J. S., and that ever since the same has been her sole and separate property.] [Or, That the property hereinbefore mentioned was after her said marriage bought by her with the proceeds of certain property which became after her said marriage her sole and separate property, by inheritance [or, gift, grant, devise or bequest] from a person [or, persons] other than her said hus- band, to wit, one J. S. ; and that ever since the same has been her sole and separate property.] AVERMENTS OF CHARACTER AND CAPACITY. 39 Ante-nuptial debt. Marriaae. Cause of Action. III. — Against Husband and "Wife, on a debt of the Wife CONTKACTED BEFORE MaEEIAGE. (q) 1. Where the husband has acquired, by an ante-nuptial agree- ment, separate property of his wife. No. 17. [2V" me of Court, c&c.] A. B., Plaintiff, against T. Z. and W. Z., his wife, Defendants. The complaint of the plaintiff shows to this court : — I. That the defendant W. Z. is the wife of the defendant T. Z. (r) II. That previous to the inter-marriage of the defendants, while said W. Z. was sole and unmarried, and, &c. [Here set forth the cause of action against the wife, arising before marriageJ] III. (s) The plaintiff further shows that previous to the (?) " § 1- -^"^ action may be main- tained against the husband and wife, jointly, for any debt of the wife contracted before marriage, but the execution on any judgment in such action shall issue against, and such judgment shall bind the separate estate and property of the wife only, and not that of the husband." " § 2. Any husband who may here- after acquire the separate property of his wife, or any portion thereof by any ante-nuptial contract, or other- wise, shall be liable for the debts of his wife contracted before marriage, to the extent only of the property so acquired, as if this act had not been passed." Laws of 1853, 1057, Chap. 576. (r) A marriage de facto, although not legally solemnized, is sufficient at common law, to render the husband liable for the previously contracted debts of the wife. Andr., 227, 228 ; 1 Camp J., 245 ; 2 Eip., 637. (s) If the husband has acquired 40 COMPLAINTS. Property of the wife which the husband has acquired. inter-marriage of the defendants, said W. Z. owned certain property, to wit : [Here describe the jprcyperty of the wife which the husband has acquired.'] lY. That before their inter-marriage the defendants entered into an ante-nuptial agreement ; [here state effect of agreement as to transfer of property] and that the value of the separate property of said defendant W. Z. [wife] so acquired by the defendant Y. Z. \husbam,d] was dollars. Wherefore, &c. 2. Where the husband has acquired after marriage, that which was before marriage the property of his wife. No. 18. [Averments I., II., and III, as in Form No. 17.] lY. That since the inter-marriage of the defendants and * on the day of 185 , the defendant W. Z. con- veyed to the defendant T. Z. [here state what was conveyed^ and that the value of the separate property of the defendant [wife] so acquired by the defendant [husban^ was dollars. Wherefore, &c. 3. Where the husband has acquired that which became the sep- arate property of his wife after marriage. No. 19. [Averments I. and II. as in Form No. 17.] ni. That since the inter-marriage of the defendants, and on the day of 185 , certain property, to wit : [here describe her separate property] became the sole and sepa- rate property of the defendant [wife] by inheritance, [or, gift, none of the wife's separate property, both can be executed only against omit these two paragraphs. In this the wife's separate property. Laws case the judgment though against of 1853, 105T, note (s) supra. AVERMENTS OF CHARACTER AND CAPACITY. 41 Corporation under general act. Averment of inoorporation_ grant, devise or, bequest] from a person other than her said husband, to wit : one J. S. lY. That thereafter and {continue as in the preceding form from the aster isle]. lY. By Corpoeation. (t) 1. Manufacturing, Mining, Mechanical or Chemical Company. No. 20. [Name of Court, cBc.J The New York Marbled Iron Works (u) Plaintiffs, against John Doe, Defendant. The complaint of the plaintiffs shows to this court : — I. That the plaintiffs are a corporation (v) created by and (t) By substituting "defendants" for " plaintiffs," these averments may be used in actions against a corpora- tion. («) The ofiBcers of a corporation are not proper parties defendant to an action against it to recover a mere money demand, except where statute authorizes suits to be against them. Brahe ■». Pythagoras Association, 4 Buer, 658. (») Before the Code, it was well settled that a corporation plaintiff need not aver its corporate existence in its declaration ; but that it was sufBcient to show that fact by repli- cation if denied by the plea. Hen- riques -b. The Dutch West India Com- pany, 2 Ld. Raym, 1535 ; 3 Ea/rri- son's B., 105; ih, 158; 4 Blackf. E„ 267; 5 ih., 146; Morris v. Stops, Edb:, 211 ; The President of the U. S. Bank v. Haskins, 1 Johns. C, 132 ; The Dutchess Cotton Manufactory v. Davis, 14 JdJins. R, 238; Bank of Utica v. Smalley, 2 Cow. 770 ; Bank of Auburn v. Weed, 19 Johns. £., 300 ; Bank of Michigan v. Williams, 6 Wend., 478 ; and see Form No. 24, note (e) ; The Proprietors of Southold ■». Horton, 6 Sill, 501 ; Marine & Fire Insurance Bank v. Jauncey, 1 Barb., 486 ; Camden & Amboy Rail Road Company v. Remer, 4 Barh., 127. Under the Code it has been held in the Second District that the aver- ment is still unnecessary in the com- plaint. Bmott, J., at Circuit, 1856, The Bank of Waterville v. Beltzer, 13 42 COMPLAINTS. When incorporation must be pleaded. under the laws of this State, organized pursuant to an act (w) of the legislature entitled " An Act to authorize the for- mation of corporations for Manufacturing, Mining, Mechanical and Chemical purposes," passed February 17, 1848, and the acts amending the same. This form of averment is supported by The New York Floating Derrick Company v. The New Jersey Oil Company, 3 Duer, 648 ; The Oswego & Syracuse Plank Eoad Company V. Bust, 5 Bow. Pr. R., 390. Eow. Pr. R, 270. And see The Bank of Lowville v. Edwards (Hub- bard, J., Sp. T., 1855), 11 ib., 216. In the New York Superior Court such averment will not be required where a corporation sues by an ap- propriate corporate name. Holyoke Bank v. Haskins, 1851, 4 Sand/., B^S ; The Union Mutual Insurance Com- pany V. Osgood, 1853, 1 Duer, 707 ; S. 0. 12 K T. Leg. Obs., 85. And see The Metropolitan Bank v. Lord, 1 AUotW Pr. R, 185. The provisions of 2 R S. 4th ed., 699, are not abolished by the Code ; so that in an action by a corporation of this State where the incorporation is only stated in the caption, in appo- sition with the corporate name, it need not be proved unless specifically denied by the answer. Bank of Gen- esee i;. The Patchin Bank, 8 Kern., 809. This rule however only applies to domestic corporations. The "Wa- terville Manufacturing Company v. Bryan, 14 Barb., 182. But in the 1 st District, Eeld, that the complaint of a Banking Association, by its president must show its crea- tion, and, that without such a state- ment there is a fatal omission of one of the material elements of a good cause of action. Mitchell, J., Sp. T., 1855, Johnson v. Kemp, 11 Mow. Pr. R, 186. (m) The Revised Statutes of New York provide that " In actions by and against any corporation created by or under any law of this State, it shall not be necessary to recite the act or acts of incorporation, or the proceedings by which such corpora- tion was created, or to set forth the substance thereof, but the same may be pleaded by reciting the title of such act, and the date of its passage." 2 jBe®. StaU., 4th ed., 699, § 11, and see The President of the U. S. Bank 0. Haskins (Supreme Ct., 1799), 1 Johns. C, 132. See also section 163 of the Code, ante, 7. Before the Code, it was held in the N. Y. Superior Court at General Term, that where a corporation un- dertook to plead its existence by set- ting forth the title of the act, it must do so with accuracy ; and a replica- tion describing the act as " An Act incorporating the President, Direct- ors and Company of" &c., whereas its true title was "An Act to incorporate the Stockholders of " &c., was held bad on demurrer. Uniou Bank v. Dewey, 1 Somdf., 509. AVERMENTS OF CHAEACTER AND CAPACITT. 43 Plank Road. Turnpike. Banking. Averment of incorporation. 2. Plank Road, or Turnpike Company. No. 21. l^Title of the Caiise.] The complaint of the Oswego and Syracuse Plank Eoad Company shows to this court : — I. That the plaintiffs are a corporation created by and under the laws of this State, organized pursuant to an act of the legislature entitled " An Act to provide for the Incorporation of companies to construct Plank Koads and of companies to construct Turnpike Koads," passed May 7, 1847, and the acts amending the same. This form of averment is supported by The Oswego & Syracuse Flank Road Company v. Rust, 5 Bow. Pr. R., 390 ; The New York Floating Derrick Company v. The New Jersey Oil Company, 3 Duer, 648. 3. Banking Association suing in its associate name. No. 22. {Name of Court., c&c] The Mechanics' Banking Association, Plaintiffs, against John Doe, Defendant. The complaint of the plaintiff (x) shows to this court : — {x) The general law under which 1841, this has been held to be per- Banking Associations are organized missive merely ; and the better prac- provides that suits may be brought tice to be, to plead as a corporation, by and against their president. Even Bbonson, J., 1 850, Gillet v. Moody, since the amendatory act of March 3 Comst., 479, 485 ; Oen. T., 1848, 44 COMPLAINTS. Suit of Banking Association in the name of its president. % — ■ I. That tliey are a cnrporation (y) created by and under the laws of this State, organized pursuant to an act of the Legislature entitled " An Act to authorize the business of Bank- ing," passed April 18, 1838, and the acts amending the same, (z) 4. Banking Association suing in the name of its president. No. 23. {Name of Coit/rt, c&c.J A. B., President of (a) The St. Lawrence Bank, Plaintiff, against T. Z., Defendant. The complaint of the plaintiff as president of the St. Law- rence Bank (b) shows to the court, Case v. The Mechanics' Banking As- sociation, 1 Sand/., 698. And see Delafield «. Kinney (1840) 24 Wend., 345 ; OgdensburgBank ■». Van Rens- selaer, 6 Eill, 240 ; and The East River Bank v. Judah {N. Y. Common Fleas), 10 mto. Pr. R, 135. And this is now the common prac- tice, — e. g. The Bank Commissioners ». The St. Lawrence Bank, 3 Seld,., 513 ; The Commercial Bank of Penn- sylvania V. The Union Bank, 1 Kern., 203 ; Bank of Genesee v. The Patchin Bank, 3 Kern., 309 ; The Mechanics' Banking Association v. Place, 4 Duer, 212. Where the corporation is sued by its president, an averment that " the defendant did " was held not an averment that the corporation did, &c. Beonson, J., 1840, Delafield v. Kinney, 24 Wend., 345. See note (d), supra. (p) It is now settled that banking associations formed under the gen- eral law of 1838, are corporations to all intents and purposes. Thomas «. Dakin, 22 Wend., 9 ; "Warner v. Beers, 23 ih., 103 ; The People «. The Assessors of Watertown, 1 Mil, 616 ; Gillet v. Moody, 3 Comst, 479 ; The Supervisors of Niagara v. The People, 7 Mil, 504; Talmadge «. Pell, 3 Seld., 328. But see Tracy v. The North American Trust & Bank- ing Company (Supreme Ct , Gen. T.), 12 N. Y. Leg. Oh., 302. («) As to how far it is necessary for a corporation to aver its exist- ence, see Form No. 20, ante, note (u). (a) It is the better practice to sue in the name of the association. See preceding form, note (x). (J) This is necessary, or the action will be taken to have been brought AVERMENTS OF CHARACTER AND CAPACITY. 45 President's oflScial character. Foreign corporations. I. That the plaintiff is the president of The St. Lawrence Bank, a corporation (c) created by and under the laws of this State, organized pursuant to an act of the legislature entitled " An Act to authorize the business of Banking," passed April 18, 1838, and the acts amending the same, (d) 5. Foreign Corporation. No. 24. I. That the plaintiffs are a corporation (e) duly chartered under and by the laws of the State of ISTew Jersey (f), and pur- suant to an act of the legislature of said State entitled \titLe of the act] passed [date of passage]. This form is supported by The Mutual Benefit Life Insu- rance Company v. Davis, 2 Kern., 569. The New York Float- ing Derrick Company v. The New Jersey Oil Company, 3 Duer. 648. in the plaintiff's own right. Hunt d. Van Alstyne, 25 Wend., 605 ; Ogdens- burgh Bank «. Van Rensselaer, 6 Mill, 240 ; Merritt u. Seaman, 2 8eld., 168 ; Gould v. Glass, 19 Barh., 179. (c) See preceding form, note (y). (d) In a complaint in the name of the president, the act or contract sued on must be pleaded as the act or contract of the corporation, not as thatof the "plaintiff" or "defendant." Delafield v. Kinney, 24 Wend., 245 ; Christopher v. Stockholm, 5 lb., 36., Thomas v. Dakin, 22 ih., 9 ; Worden V. Worthington, 2 Barb., 368; Mer- ritt 11. Seaman, 2 Seld., 168. But the suit is by the banJc, not by the pres- ident in right of the bank. Lowerre' n. Vail, 5 Abbott's Pr. K., 229. The nominal proprietor of an indi- vidual bank, who furnishes the secu- rities to the Comptroller, and to whom the circulating notes of the bank are delivered by that officer, and in whose name, as proprietor, all the contracts and transactions of the bank are made and conducted, is a "trustee of an express trust." T. R. Stkong, J., Gen. T., 1853. Burbank, Pres't, &c. V. Beach, 15 Barb., 326. («) Whether this averment be es- sential or not, see cases cited Form No. 20, ante. But if it be omitted, on answer denying specifically the allegations of the complaint, though it does not deny, yet it does not ad- mit the incorporation, and the plain- tiff must prove it by evidence of the charter or general act, organization and user. Wells, J., 8p. T., 1851. Waterville Manufacturing Company ■». Bryan, 14 Barb., 182. And see Stoddard i;. The Onondaga Annual Conference, 12 Barb., 573. (/) One foreign corporation may sue another in the courts of this State upon a cause of action arising in it. Sp. T., 1854, The Bank of Commerce V. The Rutland & Washington Rail Road Company, 10 Eow.Pr. R., 1 46 COMPLAINTS. Suit of Joint Stock Company under Act of 1849. Y. — By Joint Stock Company suing in the name of an Officee. (g) No. 25. [Ifame of Court, cfec.]v A. B. President, [or, Treasurer,] of the [WameoftUe Company, '\ Plaintiff, against CD., Defendant. The complaint of the plaintiff, as president \or, treasurer] of the [name of the company] shows to the court, I. That the \namie of the company'] is a joint-stock company [or, association] in the town of and county of in this State, consisting of seven or more shareholders, (h) II. That the plaintiff is the president [or, treasurer] of said company [or, association], (i) [Set forth cause of action.] {g) "Any joint-stock company or association consisting of seven or more shareholders or associates, may sue and be sued in the name of the president or treasurer for the time being of such joint-stock company or association." 2 Rev. Stat. Ill; Laws of 1849, ch. 258, § 1. This act does not include corporations. Gen. T., 1855, New York Marbled Iron Works V. Smith, 4 Buer, 362. Such an action has the same force and effect so /ar as the joint property &c. is concerned as if it were against the members; but it does not bind their personal property, nor is it a bar to an action against them to enforce their personal liability upon the same debt. (A) It is not necessary to name the shareholders. Marvin, J., Gen. T., 1856. Tibbitts, treasurer, &c. v. Blood, 21 Bari., 650. (j) For a form of complaint in an action brought under the act of 1851, by the oflBcer of any association of seven or more persons who own any property jointly or in common, see, post. Forms of Promissory notes ; Payee against MaJoer. AVERMENTS OF CHARACTER AND CAPACITY. 47 Averment of appointment of Lunatic's committee. YI. — By Committee of a Lunatic oe Habitual Deunkaed. No. 26. IN'ame of Court, <&c.\ A. B., Committee (j) of M. N., a Lunatic, [o?*, a Habitual Drunkard,] Plaintiff, against T. Z., Defendant. The complaint of the plaintiff as committee of M. N., a lunatic [or, a habitual drunkard] shows to this court : — L That on the day of 185 upon proceedings duly iastituted in the Supreme Court (k) of this State in and for the county of , \or, in the county court of ,] by an inquisition then taken and returned said M. N. was found to be a person of unsound mind, [or, an habitual drunkard] and thereupon this plaintiff (j) Prior to the act of 1845 it was requisite that actions on behalf of a lunatic should be brought in the lu- natic's name. Petrie a. Shoemaker, 24 Wend., 85; Lane i;. Schermer- hom, 1 Rill, 97 ; Mckillip v. Mckil- lip, 8 Ba/rb., 552. Under that act, however, committees may sue in their own name "for any debt, claim or demand transferred to them, or to the possession or control of which they are entitled as such committee." 2 Rev. Stat. Uh ed., 238, § 11. It has been held that under the Code the committee is the trustee of an express trust, and therefore may sue in his own name without joining the lunatic ; that this extends to actions for equitable as well as those for le- gal relief. Erie }^. T., 1852, Person V. Warren, 14 Barb., 488. See also Davis V. Carpenter, 12 How. Pr. i?., 287. The case of Mckillip v. Mckil- lip {Oswego Oen. T., 1850, 8 Ba/rl., 652), where it was held that an equitable action affecting real prop- erty must be brought in the lunatic's name, was an action commenced be- fore the Code. (h) As to the history of the judi- cial custody of lunatics, see BrowrCs Case, 1 Abiotts'' Pr. JR., 108. 48 COMPLAINTS. Account of appointment of Administrator. was, by an order of said court duly made on the day of 185 , at appointed committee of said M. N. (1) . YII. — By Administeatoe. No. 27. [iVffiwe of Court, c&o.] A. B., as Administrator (m) of the Estate of M. N., deceased, Plaintiff, against Y. Z., Defendant. The complaint of the plaintiff, as adnainistrator of the estate of M. N., deceased, (n) shows to the court : — [Set forth the cause of action.] That on the day of 185 , said A. B. died intestate, and that on the day of 18 , letters of administration upon the estate of said A. B. deceased, were (T) See cases cited in notes to Forms Nos. 28 and 31, and Hall v. Taylor, 8 How. Pr. R, 428. As to proper mode of proceeding to collect a debt due from a lunatic or drunkard, see Soverhill v. Dickson, 5 Eow. Pr. R, 109 ; Hall v. Taylor, 8 Row. Pr. R, 428. (m) As to when an action by an executor should be brought in the representative and when in the indi- vidual capacity, see Lyon ■». Marshall, 11 Bari,, 241 ; Merritt v. Seaman, 2 Seld., 168; Mowry v. Adams, 14 Mass., S27 ; Talmadge v. Capel, 16 lb., 73 ; Biddle v. Wilkins, 1 Pet., 692 ; Curtis v. Button, 4 Sand/., 719. (n) A complaint commencing A. B., administrator of the goods, &c. of deceased, plaintiff in this action, and containing no other statement of the fact of the plaintiff's appointment as administrator, does not allege that he is administrator or show that he prosecutes in that capacity. The in- troductory statement is a descriptio persoruB merely. In an action re- quired to be brought by the admin- istrator, in his capacity as such, a complaint so drawn does not contain a statement of facts constituting a cause of action, and is bad on demur- AVERMENTS OF CHAR'ACTER AND CAPACITY. 49 Issue of letters of administration. Profert and oyer vinnecess.ary. duly issued and granted (o) to this plaintiff by the Surrogate (p) of the county of of this State (q) appointing this plaintiff administrator of all the goods, chattels and credits which were of said deceased, and that this plaintiff thereupon duly qualified as such administrator, and entered upon the discharge of the duties of his said office. This form is supported by Wheeler v. Dakin, 12 How. Pr. B., 537 ; Welles v. Webster, 9 ib., 251. See also form No. 31. and cases there cited. rer. So of the complaint of an exec- utor. Merritt v. Seaman, 2 Seld., 168. See the opinion of Welles, J. contra, Steulm Sp. T., 1853, Welles v. Webster, 9 Em. Pr. R, 251 ; and see Smith v. Levinus, 4 Seld., 472 ; 7th Bist. Gen. T. 1855, Sheldon v. Hoy, 11 Sow. Pr. R,n. The fact that the plaintiff is admin- istrator and has been regularly ap- pointed by the surrogate of some county in this State, is a material and traversable fact, and must be stated in such form as to tender an issue to the other party. Matter merely descriptive of the person of the plaintiff is not issuable, nor does it constitute any part of the cause of action. 1th Bist. Gen. T., 1855, Shel- don V. Hoy, 11 Mow. Pr. P., 11. (o) This is the proper form of alleging the appointment of an exec- utor or administrator. Beach v. King, 17 Wend., 197. 4 (p) The date, place, and power of the appointment should be shown as traversable facts. See Form No. 31, note (e). But this averment is not necessary where the plaintiff may maintain the action in his own right. Ib. See also post, Promissory Notes, Payee against Maker. (q) Section 161 of the Code (ante . 7) dispensing with the necessity of setting out the facts which show the jurisdiction of a court or officer of special jurisdiction, of this State, is applicable to the decision of the surrogate in the appointment of an executor or administrator. Dutchess Sp. T., 1856, Wheeler v. Dakin, 12 How. Pr. R., 537. The former rules of profert and oyer have no application under the Code. Mayor of New York v. Doody, 4 AUotts' Pr. R, 127; Welles v. Webster, 9 Eow. Pr. R, 251. 50 COMPLAINTS. Suit by executor. Who must join. Yin. — Bt an Exectttok. No. 28. [JVame of court, &o.\ A. B., as Executor (r) of the last will and testament of M. N., de- ceased, Plaintiff, against T. Z., Defendant. The complaint of the plaintiff, as executor of the last will and testament of M. !N"., deceased, shows to the court : — [Set forth the cause of action.] That on the day of 18 , said M. N. died, leaving a will, by which this plaintiff was appointed the sole executor thereof; that on tbe day of 18 , said will was duly proved and admitted to probate in the office of the surrogate of the county of Westchester, and letters testamentary (s) thereupon were thereafter duly issued and granted (t) to this plaintiff, by the surrogate of said county ; and this plaintiff thereupon duly qualified as such executor, and entered upon the discharge of the duties of his said office, (u) (r) As to when suit should be brought in the individual and when ■ in the representative capacity, see note (to), supra. (s) Profert of letters is not neces- sary. See note (q), supra. {t) See note (p), snpra. (w) The former rule was, that where there were several executors, all must join in the prosecution of a suit, even though some had renounced — Bodle B. Hulse, 5 Wend.., 313. But since the act of 1888 {Lama 0/I888, 103, ch. 149, § 1), it is no longer necessary to join those executors, as parties to whom letters testamentary have not issued and who have not qualified. AVERMENTS OF CHARACTER AND CAPACITY. 51 Receiver. Effect of order of appointment. Leave to sue. IX. — By AND Against (v) Keceivees. 1. Receiver appointed in Supplementary Proceedings. No. 29. [Title of the caiise\. The complaint of A. B., as receiver (w) of the property of M. N., shows to the court : — [Set forth cause of action accruing to M. JV., the judgment debtor.] That on the day of 185 , at , upon application duly made by O. P., a judg- ment creditor of said M. N., in proceedings supplementary to execution, the plaintiff was, by an order of Hon. , one of the justices of the Supreme Court [or, county jiidge for the county of ,] duly appointed receiver of the property (X) of said M. K (y) 2. Receiver appointed pending litigation. No. 30. I. That on the day of 185 ^ at the city of New York, in an action then pending in the Court of Common Pleas for said city, wherein M. N. was plaintiff («) In actions against receivers, 142 ; and see the Ohautauque County use the same form of averment of Bank v. White, 2 Seld., 236. appointment, excepting the word (y) Leave to sue need not be " plaintiff," for which substitute " de- averred. It should be obtained to fendant." protect the party suing from costs, {w) The complaint should show &c. ; but the omission to obtain it is distinctly that the plaintiff sues in a matter of practice. Even where his ofiBcial character. the statute forbids a suit without (x) Since the Code, the order leave, — e. g., upon a judgment of a appointing a receiver has the like court of record within five years, — effect upon his real as his personal leave is not one of the facts con- property ; and the whole, by force stituting the cause of action ; and the of the order, becomes vested in the proper remedy for neglecting to ob- receiver when the appointment is tain it is by motion, not demurrer, completed. No assignment is neces- Finch v. Carpenter, 5 Abbotts' Pr, sary. Porter v. Williams, 5 SeU., R., 285. 52 COMPLAINTS. When appointment of receiver must be averred. Hew. and 0. P. was defendant, upon application duly made by said M. N., this plaintiff was, by an order of said court, duly appointed receiver of the jproperty hereinafter de8cribed.(z) 3. Becewer of Dissolved Corporation.{A) No. 31. [Title of tJie cause']. The complaint of the plaintiff, as Receiver of the Canal Bank, shows to the Court : — [Set forth cause of action accruing to the corporation.] That on the 17th day of July, 1848, at , upon application duly made upon occasion (b) of the insolvency of the said Canal Bank [or, upon occasion of the voluntary dissolution of the said Canal Bank], the plaintiff was, by an order of the Supreme Court in and for the county of , duly appointed (c) receiver of the property and effects and things in action of the said Canal Bank, pursuant to statute ; and thereupon gave such security (d) as the court directed, as required by law, and entered upon the duties of such office. (z) Leave to sue need not be should be shown. Gillet v. Fairchild, averred. See note (y), supra. i Den., 80, 83. (a) Where the receiver's title to (c) It is not enough for the re- the chose in action, upon which the ceiver to allege merely that he was suit is brought, was not derived duly appointed receiver. His com- through his appointment, — e. g. when plaint should state the time, place, he sues on a note given to him after and power of his appointment. Gil- his appointment, for a debt due to let v. Fairchild, 4 Den., 83 ; Beach v. the corporation, — ^it is not necessary King, 17 Wend.,19t ; Bangs v. M'ln- to set forth his appointment. For a tosh, 23 Barb., 591 ; White i). Low, Form of Complaint in such a case, 7 ib., 206, as explained by White v. see post, Promissory Notes, Payee Joy, 3 Kern., 83 ; and see 8 Gow., against MaTcer. 236 ; 13 Eow. Pr. E., 413. (J) The occasion of the dissolution (d) Gillet v. FairchUd, 4 Den., 80. FOR MONEY LENT, PAID, HAD, ETC. 53 Analj'sis of Section II. SECTION II. Complaints in actions for Money Lent, Paid, Had and Received, &c. I. — Foe Money Lent, — By Lendek against Eoekower. II. — Fob Money Paid. 1 . By one having paid the debt of another, to be repaid on d emand. 2. By one having paid the debt of another, to be repaid ou a day certain. 3. By assignee of lender against borrower, on an account for money lent, paid, &c. 4. By maker of accommodation note, having paid it. 5. By indoi'ser of note ; having paid a part, — to recover from the maker the amount paid. 6. By surety on lease, against principal. 7. By surety against principal, — for debt for goods sold, and costs of judgment thereon, paid by the surety. 8. By one of two joint makers of a note, having paid it, against the other, — for contribution. ni. — For Money Had and Eeoeived. 1. For repayment of advances on a contract for services, unfulfilled. 2. For repayment of a deposit on a contract for purchase of real estate, unfulfilled. 3. By pledgor of note as collateral to a debt against the pledgee, the note having since been collected by the pledgee ; — to recover the excess of its amount, over the y amount of the debt. 4. By assignees against the pledgees of a debtor who had hypothecated a mortgage as collateral to notes on which he was jointly liable, the mortgage having since been collected by the pledgees ; — to recover the excess of its amount over the amount due on the notes, and to have the notes delivered up. 5. For repayment of a judgment paid and afterwards reversed. 6. By owner of goods against common carrier, — to recover back excess of freight exacted. T. Against factor, — for price received for goods sold. 8. Against factor, under del creiere, commission. 9. Against note-broker, — for proceed.s of note discounted. 54 COMPLAINTS. " Certainty " in pleading. What constitutes it. Videlicet. I. — FoK Money Lent, — Lendek against Bokkowek. No. 32. That on the twentietli day of October, 1857, at the city of Kochester (e), the plaiutiff lent to the defendant (f), on con- (e) The language of the books is that every material fact must be stated with certainty ; and the Code provides that " when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made more definite and certain, by amendment." Code, % 160; ante, 6. " Certainty," in the language of pleading does not mean accuracy ; for certainty was required when truthfulness was quite unnecessary. It means particularity with respect to the details of the fact alleged, sufficient to identify it, and enable the other party 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 un- certain, since it might leave the defendant in doubt as to what tran- saction it had reference to. The details which are thus essential to be stated are, however, in themselves often immaterial, — that is, matters of description merely, for the purpose of identification, and not matters of substance which may afibrd 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 Rochester, his answer would be frivolous. Under the old practice, it was customary to state incidents of time, place, quantity, &c., under a videlicet, — e. g., " that heretofore, viz. ; " as it had been said by good authorities 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 videlicet did not make that material which would otherwise have been immaterial. 1 Chit. PI, 377, note m., and cases there cited; 2 Campi., 307; 1 Saund., 170, note 2 ; Vail v. Lewis, 4 Johns., 450 ; Gleason v. M'Viokar, 7 Cow., 42 ; Ladue v. Ladue, 16 Verm., 189. There seems no reason for retaining the videlicet under the Code, except that it is sometimes the most concise way of indicating a lack of positive knowledge respecting the time, sum, or name mentioned. (/) Mr. Greenleaf states that a request is material to be proved in this action, 2 Oreenl. on Ev., 93, § 107 ; but we omit the separate state- ment, "at his request," upon the FOR MONEY LENT, PAID, HAD, ETC. 55 Request. ■ "When it must be averred. Pleading payments made. dition that it should be repaid (with interest) on demand, [or, repaid on the day of 185 ,] the sum of dollars. II. That this plaintiff, on the day of 185 , duly demanded (g) payment of the same from the defendant, but no part thereof has been paid [or, no part thereof has been paid, except — state hriejty amount of pay- ments made, if any (h)] ; and the defendant is now justly indebted therefor to this plaintiff in the sum of dollars, with interest, from the i!Otli day of October, 1857 [or, if it was to T>e repaid on demand, claim interest from the day of demand (i)]. Wherefore, &c. authority of the recent case ofVic- tors v. Davis, 1 Bowl. & L., 984. Upon principle, it seems unnecessary to aver request in an action for money lent, for the reason that a request is implied in the very idea of a loan, although it is necessary to prove a request, in order to constitute a loan. And see Brown ■». Gamier (6 Taunt, 389 ; S. C, 1 Eng. Com. L. R, 421), where it was held that "hired" im- plies a request ; and Emery ■». Fell (3 T. R., 28), andGlennyu. Hitchins (2 Code R, 56 ; S. C, 4 Eow. Fr. R, 98), where it was held that "sold and delivered " imply a request. (gr) See note (n), supra. (h) No principle of pleading re- quires the plaintiff to state payments made on account of the claim in suit. So far as the theory of pleading is concerned, the plaintiff may declare upon the original cause of action en- tire, and leave defendant to show his payments by way of defense. The spirit of the Code, however, requires parties always to plead truthfully ; and there is a necessity to do so, where the complaint is to be verified. So far as plaintiff seeks to recover upon the claim in suit, it is often necessary to deny payment before suit brought ; and he cannot do this, under oath, as to the whole claim, where part payments have been made. In such case he should briefly state what amount has been paid, not because it is necessary to antici- pate the defense, or to state the pay- ments as entering into the statement of his cause of action, for it is not, (Wayne, Sp. T., 1856, Van Demark V. Van Demark, 13 How. Pr. R, 372), but to enable him to deny payment as to that balance which he seeks to recover. (i) See note {q), infra. 56 COMPLAINTS. Debt of defendant paid by plaintiff. On Demand. II. — ^FoR Monet Paid. 1. By one ha/ving paid the debt of anoth&r, to he repaid on dema/nd. No. 33. I. That on the day of 185 , at (j) this plaintiff paid to the use of the defendant, at his request (k) and on condition that the same should be repaid on demand, (1) the sum of dollars, in paying to one M. N. one quarter's rent of a house in then occu- pied by the defendant, (m) ( j) See note (e) supra. (h) An averment of request is ne- cessary in a complaint for money paid, laid out, &c., though it is other- wise in an action for money lent. See note (/) supra. And see 2 Oreenl. J'd. , 93, § 1 07 and note. The request may be implied or express. As to the cases in which it will be implied, see 2 Oreenl. Ev., 102, § 114. (I) The complaint must show in one way or another that the debt has hQCom^ pa/yabh bX the time of com- mencing the action. Allen v. Patter- son, 3 Seld., 476. The advances made by plaintiff are ^) See note (k), supra. 58 COMPLAINTS. When interest may be claimed. From wliat date. II. That defendant promised to repay said sum (with inter- est) to this plaintiff ou the day of 185 , but has not paid the same or any part thereof, [or, any part thereof except, state hriefiy the amount of payments m,ade, if any,] and the defendant is now justly indebted therefor to this plaintiff in the sum of dollars, with interest from the day of 185 , [the day on which payment was due hy the promise.] (q) Wherefore, &c. 3. Sy Assignee of lender against borrower. No. 35. I. That on the 3d day of November, 1853, at the city of New York (r), the defendant was indebted to one James Whitney in the sum of five thousand and forty-six dollars and eighty cents, on an account (s) for money lent by said Whit- {£) Interest should be claimed from the day when it is due, as follows : — Where money is expended by plaintiff on an understood condition that defendant would pay the principal on demand, and demand was made, — from the date of the de- mand. Where money is expended on such condition, but there was no demand, ■ — from the date of the commencement of the suit. Where money is expended on a promise to repay it at a particular time though without mention of in- terest, and though no demand was made, — from the date when payment became due by the promise. Where money is expended on a promise to repay it with interest, — from the date of the expenditure. For explanations as to other points in this form, see the notes to Form No. 33, ante. (r) This is a sufficient statement of the place, where the payments in the account mentioned were made. Emery v. Fell, 2 T. R, 28. (s) We think the practitioner should be somewhat cautious how he employs the form of complaint sustained in Allen ■». Patterson (4 SelA., 476), except in cases where the items of the claim are embraced in an account between the parties. That case decided simply that a demurrer, on the ground that the complaint did not state facts suffi- cient to constitute a cause of action, would not lie to a complaint merely alleging — " that the defendant is in- debted to the plaintiffs in the sum of FOR MONEY LENT, PAID, HAD, ETC. 59 Common count for goods sold. Demurrer. Motion. ney to said defendant, and for money paid, laid ont and expended by said Whitney to and for the use of said defend- ant, and at his request. .TI. That thereafter said James Whitney duly assigned (t) said $371 01, for goods sold and delivered by the plaintiflfe to the defendant, at his request, on May 1, 1849, at the city of Buffalo j * * * that the items in their account exceed twenty in number j * * * that there is now due them from the defendant $371 01, for which sum the plain- tiffs demand judgment." But the question whether a motion against this complaint, on the ground that it was indefinite and uncertain, would lie, was left whoUy untouched. That question was presented to the New York Superior Court in Cudlipp v. Whipple (1 AUotW Pr. R, 106). That was an action by assignees of a demand on an account. The alle- gations of the complaint in relation to the demand, were, — "that the de- fendant was indebted to one J. W. (plaintiffs' assignor), on November 3, 1853, in the sum of $-5,046 80, being a ialanceqfan 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 defendant, and at his request.'' The defendant moved to make the complaint 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 demanding a copy of the account referred to ; under the provisions of section 158 of the Code. It will be noticed that the action in Allen V. Patterson was also on an account. But, observe ; this reasoning is applicable only where the action is for a sum claimed to be due on an account. Neither Allen i). Patterson nor Cudlipp v. Whipple, are authori- ties for the position that a complaint in the old forms (as in the above examples), is sufficiently definite and certain, in an action not upon an account. And the result of those cases would seem to be, that in such action the complaint may be made more definite and certain, on motion, though no demurrer will lie. This position is sustained by several cases. Eno !). Woodworth, 4 Oomst., 249 Blanchard «. Strait, 8 Sow. Pr. R. 83 ; Wood d. Anthony, 9 ib., 78 Chesborough v. The New York & Erie Piailroad Company, 13 ib., 557 Graham i). Camman, ib. 360 ; Hall » Southmayd, 15 5arJ., 32. But com pare Adams v. Holley, 12 Sow. Pr. R, 326. (t) That this is sufficient, see note to Form No. 58. CO COMPLAINTS. Accommodation note. Remedies of maker. indebtedness to this plaintiff, of which, the defendant had due notice, but no part of the same has been paid, and there is now due to this plaintiff thereon from the defendant the sum of, «fec. Wherefore, &c. This form is supported by Cudlipp v. Whipple, 1 AUbotts' Pr. R., 106 and Allen v. Patterson, 3 Seld., 476. 4. By Maker of AGCommodation note, hawing paid it. (u) No. 36. I. That on the day 185 , at , this plaintiff made and delivered to the defendant his promissory note in writing, in words and figures follow- ing. (T) \Cojpy of the note.] II. That this plaintiff never received any consideration for said note, but it was an accommodation note, made and given to the defendant, at his request, and upon his promise that he would pay the same at maturity. III. That as this plaintiff is informed and believes, the defendant thereafter and before the maturity of said note, nego- tiated the same for value. IV. That the defendant failed to pay said note at maturity, and that this plaintiff' was thereupon compelled (w) to pay it, and did on the day of 185 , at , pay it, and that no part of the same has been paid to this plain- tiff', but the defendant is now justly indebted to him therefor in the sum of dollars, with interest, &c. Wherefore, &c. (u) An accommodation maker or (w) See Form Jfo. 40, note (J), indorser is a surety, and may sue as If the accommodation maker was such to recover payments made by sued, he may recover the costs of him. Baker ». Martin, 3 Bari., 634 ; suit, unless it was evident that he Neass v. Mercer, 15 ib. 318. had no defense. Parsons^ Merc. L., (ii) For authorities as to the proper 93 and note ; Stratton v. Matthews, mode of pleading on notes, see Prom- 12 Jur., 924 ; Baker «. Martin, 8 issory notes, post. Barb., 634, and cases there cited. FOR MONEY LENT, PAID, HAD, ETC. 61 Remedies of indorser of note. Partial payment. 5. £y Indorser of note, having paid a part, — to recover from the Maker the amount paid, (x) No. 37. I. That on the day of 185 , at , the defendant made and delivered to this plaintiff his promissory- note in writing, in words and figures following. [Copy of the note.} II. That thereafter and before maturity of said note, this plaintiff indorsed the same and negotiated it for value. in. That at the maturity of said note the same was duly presented for payment, but was not paid, whereof this plaintiff had due notice, and that thereafter this plaintiff was compelled to pay, and on the day of 185 , at 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, and that no part of the same has been paid to this plaintiff, but the defendant is now justly indebted to him therefor in the sum of dollars, with interest from, &c. Wherefore, &c. (x) Where an indorser has paid ally paid, as for money paid to the up the whole of a note and become use of the maker or indorser. Wright the legal owner of it, he can either v. Butler, 6 Wend., 284, afiBrming sue the maker or the prior indorser, S. C. 20 Johns., 367, and 2 Wend., or both on the note. Or he can sue 869 ; Pownal v. Ferrand, 6 Barnw. & either one for mmey paid, &c. Ba- G. 439 ; S. C, 13 Eng. Com. L. R. 280 ; ker V. Martin, 3" Bm-l., 634. But Baker o. Martin, 3 Barh., 634 ; Qwry? See Wright v. Butler, 6 Dygert v. Gros. 9 ib. 506. It Wend., 290. But where he has only seems that separate prior indorsers paid it in part he cannot sue on the cannot be joined as defendants in note, not being the legal owner of it, such an action for money paid, &c. but he can recover the amount actu- Barker v. Cassidy, 16 Barb., 177, 184. 62 COMPLAINTS. Surety on a Lease. Payment. Express promise. 6. By Surety on Lease, against Principal. No. 38. I. That on or about the first day of April, 1856, the defend- ant entered into an agreement in writing with one M. N., in words and figures following, to wit: " This is to certify that I have this day hired of M. E"., the house and premises No. in street in the city of Albany, for the term of one year from the first day of April, 1856, and that I agree to pay therefor to the said M. N., the rent of four hundred dollars in equal quarterly installments, and at the expiration of said term, to render up the said prem- ises to said M. IT. in as good condition as the same are now in, reasonable wear and tear thereof and damages by the elements excepted." (Signed) " T. Z." II. That at the request of the defendant, the plaintiff made and delivered to the defendant his guaranty thereon, in writing, in words and figures following, to wit : "In consideration of one dollar, I hereby guarantee the faithful performance on the part of \defendani\ of the within agreement." (Signed) " A. B." III. That said defendant thereupon delivered said agreement and guaranty to said M. N., and thereupon and in considera- tion thereof, obtained and had possession of said premises, pur- suant to said agreement, whereby the defendant became liable (y) to the said M. N. for the rent therein named ; and that a portion of it, to wit, the installment of one hundred dollars which became due on the first day of April, 1857, the defendant failed to pay. {y) The defendant's legal liability there be an express promise by de- to pay the debt which«plaintiff has fendant to repay the plaintiff. 2 paid, is an essential fact in an action Oreml. on Ev., 108, § 114, n. to recover the money paid, unless FOR MONEY LENT, PAID, HAD, ETC. 63 Surety on a debt. What is payment. Costa. IV. That on the 13th day of August, 1857, at Albany aforesaid, this plaintiff was compelled to pay and did pay (z) to the said M. N., at his request, and to the use of the defend- ant, the sum of one hundred and dollars, being said sum of $100 with interest thereon from the first day of April, 1857, and that no part of the same has been paid to this plain- tiff; but the defendant is now justly indebted to him therefor, in the sum of dollars with interest from, &c. Wherefore, &c. 7. By Surety against Principal,— for debt for goods sold and costs of judgment thereon paid hy surety. No. 39. I. That on the day of 185 , at , this plaintiff at the request of the defendant bought of one M. N. to be delivered to the defendant and to his use, certain goods and chattels, viz. : of the value of dollars, and the same were thereafter delivered to the defend- ant, but the defendant failed to pay for the same. n. That on the day of 185 , in an action brought to recover from this plaintiff the price of said goods, said M. JST. recovered judgment in the County Court of county against this plaintiff, then defendant, for the sum of dollars being the amount of said price with interest and costs. III. That on the day of 185 , at , this plaintiff was compelled to pay and did pay to said M. N. the sum of dollars, being the amount of the said judgment (a) and interest thereon, and that no (s) Givinga negotiable note which yet unpaid. Barclay «. Gouch, 2 ^sp. the creditor accepted in satisfaction 571 ; Witherby «. Mann, 11 Johm., of the principal's indebtedness, has 518. been held a payment of the indebt- (a) It is not settled in what cases edness, sufllcient to allow the surety the surety may recover costs paid by to recover, although the note was him in defending himself. His riglit 64 COMPLAINTS. Joint makers of note. Kepayment of advances. part of the same has been paid to this plaintiff; but the defendant is now justly indebted to him therefor in the said sum of dollars with interest from, &c. Wherefore, &c. 8. By one of two Joint Makers of a note, homing paid'it, against the other,— for contribution. No. 40. I. That on the day of 185 , at , t^iis plaintiff and the defendant made and delivered to one M. N. their joint \or, joint and several], promissory note, in writing, in words and figures following [Copy of the note.] II. That at the maturity of said note this plaintiff was compelled (b) to pay and did pay the same ; and that no part thereof has been repaid to him, but the defendant is now justly indebted to him therefor in the term of dollars with interest from, &c. Wherefore, &c. III. Foe Money had and beceived. 1. For repayment of Advances on a contract for services, un- fulfilled. No. 41. I. That on the day of 185 , at , this plaintiff entered into an agreement with the defendant whereby the defendant undertook to render his services to the plaintiff as for the term of in con- sideration of the sum of dollars to be paid therefor by this plaintiff. against the principal seems less pulsory to entitle the payer to contri- doubtful than that against a co-surety, bution; but this does not mean that See 1 Parsons on GonPr., 33, n. (/.) there must be a suit, but only a fixed P(ir«ore«Jferc.Z. 89 ; Baker «. Martin, and positive obligation. 1 Parsons 3 Barb. 642, and cases there cited. on Contr. S3 ; Peels; v. IngersoU, 3 (J) The payment must be com- SM, 528. FOR MONEY LENT, PAID, HAD, ETC. 65 Defendant's refusal. Plaintiff's readiness. Contract of sale. n. That on the day of 186 , at , the plaintiff paid to the defendant, on account of his services to be rendered thereafter in pursuance of said agreement, the sum of dollars. ni. That the defendant wholly neglected and refused to render said services (c), although this plaintiff has been ready to receive and to pay for the same (d), and that no part of said sum has been repaid to this plaintiff; but the defendant is indebted to him therefor in the sum of dollars with interest from, &c. Wherefore, &c. 2. I'or repayment of deposit on a contract for the purchase of real estate^ unfulfilled, (e) No. 42. That on the twentieth day of March, 1856, the said defend- ants and this plaintiff entered into a contract in writing sub- scribed by the defendants, whereby it was mutually agreed that the said defendants should sell to this plaintiff certain leasehold premises know^ as number 84 Varick street in the (c) The plaintiff must prove the whole contract price. Main d. King, non-performance. Wheeler ■». Board, 8 Barb. 535. 12 Johns. 363. (e) Where a sale is hy auction the (d^ Where an agreement on which auctioneer holding the deposit is a money has been advanced has been stakeholder, and upon a failure of the rescinded by the defendant, or per- vendor to complete the contract, e. g. formance so neglected as to entitle on failure of title, is always bound ta the plaintiflf to rescind it, a demand repay the purchaser. See Lee v. of repayment is not necessary to Munn, 1 ifoor«, 481 ; Curling ■». Shut- enable the plaintiff to recover back tleworth, 6 Bing. 121 ; Berry v. the money paid. Raymond v. Beam- Young, 2 Esp. 641 ; BabUngton on ard, 12 Johns. 274 ; and see Utica Auctions, 173. Bank v. Van Giesen, 18 ii. 485. If And if he failed to disclose his the defendant has rescinded, plaintiff principal, he is liable individually need not prove readiness to pay the in an action for damages for non- 5 QQ COMPLAINTS. Dependent Covenanta. Purchaser's deposit. Readiness to perform. city of New York, for the sum of three thousand dollars to be paid therefor by this plaintiff; that tbe defendants should make a good title to the said premises and deliver a deed thereof on the twenty-eighth day of April, 1856 ; and that the plaintiff should thereupon pay to the said defendants the said sum of three thousand dollars (f). II. That the said agreement being so made, this plaintiff, as a security, as well for the performance of said agreement on his part, as to secure a performance thereof on the part of the said defendants, then and there deposited in the hands of the said defendants the sum of three hundred dollars as a part of the said purchase money, to be to and for the use of the defendants, and to be retained by them on account of the purchase money if this plaintiff should complete his said purchase and receive the deed of said premises ; but to be to and for the use of this plaintiff and to be returned to him, if the defendants should fail to fulfill their agreement as aforesaid, and give a deed of the premises at the time and pursuant to the agreement hereinbefore set forth. III. And this plaintiff further states, that, although he has always been ready and willing to do and perform every thing in the aforesaid agreement contained on his part, and on the said twenty-eighth day of April, 1856, was ready and willing, and duly offered to the defendants, to accept and take the deed of said premises pursuant to the said agreement, and to pay to them the balance of the purchase money due therefor (g). performance of the contract as well each other. Green ■». Reynolds, 2 as for repayment of the deposit. Johns. R. 207 ; Jones e. Gardiner, 10 Hanson B. Eobordeau, P«a/i;«'s J/; P. C. Johns. R. 266; Gazley v. Price, 16 120; See 2 Einfi Com. 630,631; Johns. R. 267 ; Hardin «. Kretsinger, Mauri «. Heffeman, 12 Johns. R. 5S ; 17 Johns. R. 2QS ; Parker ». Parmele, Bank of Rochester v. Monteath, 1 20 Johns. R. 130. Den. 402 ; Mills v. Hunt, 20 Wend. (g) It is necessary for the plaintiff 481 ; affirming S. C, 17 ib. 338. to aver that he was ready and willing (/) Such an agreement is mutual to fulfill at the time and place ap- and the covenants are dependent on pointed, whether the other party was FOR MONEY LENT, PAID, HAD, ETC. 67 Vendor's failure. Demand of repayment. What damages recoyerablei. yet the defendants did not on the said twenty-eighth day of April, 1856, nor have they at any other time whatsoever given this plaintiff a deed of said premises pursuant to said agree- ment, but on the contrary have wholly failed and refused so to do. (h) And this plaintiff further states, that on the second day of May, 1856, he demanded (i) of the said defendants that they pay to him the said sum of three hundred dollars so deposited with them as aforesaid, but that no part of the same has been paid. Wherefore this plaintiff demands judgment for the sum of three hundred dollars, together with interest thereon from the second day of May, 1856, together with, &c. ready or not. Porter v. Rose, 12 Johns. R. 209, and cases there cited. Where the covenants are depend- ent the purchaser is not bound to make an absolute tender of perform- ance. An offer to perform condi- tioned on the defendant's performing is sufficient. Robb v. Montgomery, 20 Johns. R. 15 ; West v. Emmons, 5 Johm. R. 179 ; Topping v. Root, 5 Cow., 404; Rawson v. Johnson, 1 East, 203 ; Watterhouse v. Skinner, 2 Bos. & P , 447. And see Miller v. Drake, 1 Cai. 45 ; Bellinger v. Kitts, 6 Barb. 278 ; and cases gwpra. But an oifer to perform is neces- sary. An averment of mere readi- ness is insulBcient. Lester «.Jewett, 1 Kern. 453; affirming S. C, 12 Barb. 502, 505 ; Williams i>. Healy, 3 Den. 363 ; Johnson v. Wygant, 11 Wend. 48 ; and see cases supra. (h) It has been held that before the purchaser is entitled to rescind the contract he must either prepare and tender a deed and demand its execution, or he must demand the execution of the deed, wait a reason- able time for the defendant to prepare and execute it, and then again de- mand its delivery. Fuller «. Hub- bard, 6 Cow. 1 ; ConoUy v. Pierce, 7 Wend. 129. But where the vendor covenants to deliver the deed on a day certain, one demand upon that day seems to be sufficient. Carpenter V. Brown, 6 Barb. 147. And 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. 11 Johns. R. 525, 527 ; Benedicts. Lynch, 1 Johns. Gh. R. 370; Dominick v. Michael, 4 Sandf. 374, 426 ; Cornish «. Rowley, 1 Selw. N. P. 179 ; Van Benthuysen V. Crapser, 8 Johns., 'ii'J. See also Sugd. on Vend., 359. And a demand of the deposit is a recision. Domi- nick V. Michael, 4 Sandf., 426. (i) The plaintiff is entitled to re- cover interest on the deposit from 68 COMPLAINTS. Plaintiff 's indebtedness. Deposit of collateral. Demand of balance . 3. By Pledgor of a rwte as collatefral to a debt, against tJie Pledgee, the note hawing since been collected by the pledgee / — to recover the excess of its arrwwnt over the amount of the debt. No. 43. I. That on the day of 185 , , this plaintiff being then indebted to the defendant in the sum of one thousand and five hundred dollars, he delivered \or, indorsed, if the note was transferred by indorscTnent] to said defendant, as a collateral security for the payment of the sarhe, a certain promissory note made by one M. N. for two thousand dollars bearing date on the day of 185 , and payable at six months after its date. II. That at the maturity of said note it was collected by the defendant, and by the application of the moneys so received by him, said indebtedness was wholly paid and extinguished. III. That after payment of said indebtedness there remained in the hands of the defendant a balance of five hundred dol- lars, belonging to this plaintiff ; payment of which the plaintiff demanded of the defendant on the day of 185 , but no part thereof has been paid. Wherefore, &c. the time of his demand for repay- Bing., 492 ; and interest on money ment. Farquhar «. Farley, 7 Tomnt. belonging to the plaintiff kept by 592. He may also recover as dama- him lying idle, ready to complete the ges for the defendant's breach of purchase. Sherry v. Oke, 3 Dowl., contract, expenses of examination of Pr. 0., 349. But such damages must title. See Jones v. Littledale, 6 Ad. be specially pleaded, and separately (& E; 486 ; Hodges v. Littlefield, 1 stated as a distinct cause of action. FOR MONEY LENT, PAID, HAD, ETC. 69 Assignment of the mortgage. Indebtedness to which it was collateral. 4. By Assignees against the Pledgees of a debtor who had hypothecated a mortgage as collateral to notes on which he was jointly liable, the mortgage having since been collected by the Pledgees / — to recover the excess of its amount over the amount due on the notes, and to have the notes deliv- ered wp. No. 44. SUPEEME OOURT, County of Heekimee. Benjamin Cahoon, Eeiend Cook, & PowEES L. Geeen, Assignees of Stephen "W. Beown, against The Peesident, Dieectoes & Com- PAirr of the Bank of TJtica. The complaint of the plaintiffs shows to this court : — I. That, as they are informed and believe, on or about the 4:th day of March, 1846, Stephen "W. Brown assigned and delivered to the defendants a certain bond and mortgage executed by one Benjamin P. Churchill, bearing date the first day of May, 1846, on which there was due or to become due and unpaid the sum of three thousand dollars, besides interest thereon, to be held by the said defendants as collateral security for the payment of certain moneys as specified in a receipt for the same then delivered by said defendants to the said Brown, in words and figures following, to wit : Bank of Utica, May 4, 1846. Stephen "W. Brown has this day assigned and delivered to the President, Directors and Company of the Bank of Utica, a bond and mortgage of Benj. P. Churchill, dated May 1st, 70 COMPLAINTS. Description of the notes. General assignment to the plaintififs. 1846, on which is this day due and unpaid the sum of three thousand dollars, to be held by the said President, Directors and Company as collateral security for the payment of the sum of three thousand dollars of the notes of Brown & Eossiter, which are held or which may be held by the said President, Directors and Company, or for any part thereof which shall remain unpaid, until the whole sura of said notes are paid. The said notes are indorsed B. P. Churchill. II. And the plaintiffs further state that, as they are informed and beliere, the notes of said Brown & Eossiter, mentioned and referred to in said receipt, were as follows : One promissory note naade by Brown & Eossiter, for one thousand dollars, on or about the 15th day of April, 1846- One promissory note for one thousand dollars, made by the said Brown & Eossiter on or about the Slst day of April, 1846; and also one other promissory note for one thousand dollars made by said Brown & Eossiter on or about the 23d day of April, 184fi. That each of said notes was payable four months after date at the Bank of Utica, and was indorsed by said Benjamin P. Churchill ; and that there were no other notes of said Brown or Brown & Eossiter indorsed by said Churchill 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. And the plaintiffs further state, that on the 30th day of May, 1846, the 'said Stephen "W". Brown, by a certain instru- ment in writing under his hand and seal for the considerations and purposes therein contained, among other things, sold, granted, assigned, transferred, set over, and conveyed unto the said plaintiffs all the goods, chattels, merchandise, bills, bonds, notes, books of account, claims, demands, choses in action, judgments, evidences of debt, moneys, stock, effects, property and personal estate of every name and nature ( j). ( j) The action of Oahoon v. The death of S. W. Brown, and the corn- Bank of Utica was brought after the plaint contained here the following FOR MONEY LENT, PAID, HAD, ETC. 71 Payment of the mortgage. Balance in defendants' hands. Value of notes. IV. And the plaintiffs further state, as they are informed and believe, that on or about the 4th day of January, 1819, the full amount of said bond and mortgacje 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 secured 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 secured by the said notes ; so that there remained a balance, after paying and satisfying said notes, of about eighty- nine dollars and fifty-two cents ; by which means the plain- tiffs became entitled to the possession of said notes, and to Lave the balance of said moneys paid over to them as the assignees of said Brown. v.. That on the day 184 , the plaintiffs demanded of defendants to account for and pay over to said plaintiffs the balance aforesaid after deducting the amount due on said notes, and to deliver to them the said notes ; but the said defendants have wholly neglected and refused so to do. Yl. And the plaintiffs aver that the said bond and mort- gage was the sole and individual property of said Brown, and tliat the notes of Brown & Eossiter were and are due from a mercantile firm which formerly existed, composed of said Stephen "W. Brown and one William Kossiter who has since died, to be paid by them equally, and that the said notes are now the property of and belong to the plaintiffs as such assignees. Wherefore the plaintiffs demand judgment against the defendants for eighty-nine dollars and forty-two cents, with further allegation : "And that shortly W. Brown died, and that no execu- afterwards, and before the payment tors or administrators have been to the defendants of either the said appointed upon his estate." notes or the said mortgage, Stephen T2 COMPLAINTS. Demand of judgment for payment of balance and delivery up of notes. interest from the 4th day of January, 1849 ; and pray that the defendants be required to deliver to the plaintiffs the notes for the payment of wljich said bond and mortgage -were hypothecated. This is, in substance, the complaint in Cahoon v. The Bank of Utica, 3 Seld., 486 (k), reversing S. C, 3 Code B., 110, and 4 Sow. Pr. R., 423. 5. For rejpayment of a Judgment jpaid and afterwards reversed. (1) No. 45. I. That on or about the day of 185 , the defendant recovered judgment against this plaintiff in the Supreme 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 the day of 185 , at , the plaintiff was compelled to pay and did pay to the defendant the sum of in satisfaction of said judgment. {h) On demurrer to the complaint judgment is reversed or modified, the it was held in that case by the Court appellate court may make complete of Appeals, that the complaint con- restitution of all property or rights tainedbut one cause, of action. Two lost by the erroneous judgment." of the notes mentioned in the original Section 369 relating to appeals from complaint were individual notes of inferior local courts to the county S. W. Brown, and a doubt was inti- court of New York Common Pleas, mated as to whether, those notes provides that if a judgment be paid having been paid, and furnishing the or collected and afterward reversed, basis of no claim in him against third the appellate court shall order the parties, they were any longer of any amount paid or coUected to be re- value, and could be treated as the stored with interest. Under these subject of an equitable claim to de- provisions a more expeditious reme- hvery up. dy may be had in the majority of (0 Section 330 of the Code pro- cases than by resort to an action, vides that on an appeal — " when the FOR MONEY LENT, PAID, HAD, ETC. 73 Reversal of judgment. Agreement with Common Carrier. Refusal to deliver. in. That after said payment, such proceedings were had in said action that on the day of 185 , by the judgment of said court [or of the Court of Appeals] said first mentioned judgment was duly reversed ; (m) but that no part of the sum paid in satisfaction thereof has been repaid to this plaintiff, but the defendant is indebted to this plaintiff therefor in the sum of dollars with interest from, &c. Wherefore, &c. 6. ^y Owner of goods against Common Carrier to recover hack excess of freight exacted. No. 46. I. That on the day of 185 , the defendants agreed with this plaintiff to transport from the city of Albany to the city of Buffalo, and to. deliver there to this plaintiff certain goods and chattels the property of the plaintiff, for the sum of dollars, [or, for a reasonable sum]. II. That in pursuance of said agreement the defendants transported said goods [for which service dollars is a reasonable sum] ; and upon their arrival at Buffalo the plains- tiff demanded said goods of the defendants, and offered to pay them, for transporting the same, said sum of dollars ; but that the defendants refused to deliver said goods unless the plaintiff would pay to the defendants the sum of dollars for transporting the same, (n) (m) It is not enough to show that (n) A payment made in order to the judgment was erroneous. It obtain possession of property to must have been reversed. Walker «. which a party is entitled and of Ames, 3 Cow., 428 ; White v. Ward, which he cannot otherwise obtain 9 Johns., 232, and see Roth*. Schloss, possession at that time, is a compul- 6 Bari., 308. sory and not a voluntary payment, But the fact that a new trial is or- and may be recovered back. Har^ dered does not suspend the right to mony v. Bingham, 2 Kern,, 99, and recover back the payment. Sturges cases there cited ; affirming S. C, 1 V. Allis, 10 Wend., 355. Duer, 209. 74: 001IPLAINT3. Excess of freight paid on compulsion. Demand. Employment of factor. III. That the plaintiff thereby was compelled to pay, and on the day of 185 , and before the delivery of said goods, did pay, to the defendants the said sum of dollars, which sum this plaintiff paid under protest, and expressly denying the defendants' right to claim such sum. lY. That on the day of 185 , at , this plaintiff demanded (o) from the defendants repayment of the sum of dollars, being the excess paid ; but that no part of the same has been paid to this plaintiff, but the defendants are indebted to him in said sura of dollars with interest from, &c. Wherefore, &c. See declaration in Harmony v. Bingham, 1 Duer, 209. 7. Against FactOTi—for 'price received for goods sold. No. 47. I. That on the day of 185 , at , this plaintiff employed the defendant to sell certain goods and merchandise of this plaintiff, upon commission, and thereupon delivered to the defendants said goods and merchan- dise, to wit [here briefly describe the articles']. II. This plaintiff further states upon information and belief, that thereafter, and before the day of 185 , but on what particular day or days he is not informed, and cannot state, the defendants sold said goods and merchan- dise for the sum of dollars, which sum they thereupon received, (p) (o) Whether a demand of repay- sale on commission alleges that de- ment is necessary in this case, Query f fendant sold but did not account to See Utica Bank d. Van Gieson, 18 plaintiff, the plaintiff must prove that Johns., 485. a sale actually took place. Elbourne (p) If the declaration in an action v. Upjohn, 1 O. & P., 672; S. 0. 11 to recover the price of goods sent for Eng. Com. L. R., 476. FOR MONET LEJTT, PAID, HAD, ETC. 75 Factor's commissions. Bel Credere Commission. III. That, as this plaintiff is informed and believes, the just charges of the defendants for commissions and expenses in and aboiit said sale amount to the sum of dollars, and no more. IV. That the sum of dollars, being the balance of said price remaining after deducting said charges, became due and payable to this plaintiff by the defendants on the day of 185 ; bat that no part of the same has been paid, (q) Wherefore, &c. 8. Against Factor under Del Credere Commission. No. 48. I. That on the eighteenth day of November, 1847, tbe plaintiffs employed the defendants to sell certain goods and merchandise of the plaintiffs, of the value of four hundred and eighty dollars, upon commission, and then delivered said goods and merchandise to the defendants ; and the defendants then promised to sell said goods and merchandise, and to be (r) responsible to the plaintiffs for the price thereof. II. That as the plaintiffs are informed and believe, there- after and on or before the said eighteenth day of November, 1847, but on what particular day or days they are not informed and cannot state, the defendants sold said goods and merchandise for the sum of four hundred and eighty dollars and two cents, on a credit of six months from the day or days of such sale ; {q) Against a foreign factor a de- for the payment of the price. It is mand, or instructions to remit, must not a promise to answer for the debt be averred. See note (i) infra. of another, and need not be in writ- (r) The contract of a factor under jng. Wolff v. Koppel, 2 Ben., 368 ; a del eredere commission is, in this Sherwood ■». Stone, 4 Ben. 267. State, an original and absolute one 76 COMPLAINTS. Factor's Commissions. Purchaser's default. Demand of balance. which credit expired before the commencement of this action, (s) III. The plaiTitiflFs further state on information and belief, that the just charges of the defendants for commissions and expenses, in and about such sale or sales, amount to the sum of fifty-four dollars and two cents. IV. The plaintiffs further state on information and belief, that the sum of dollars, being the price of said goods and merchandise after deducting said charges, became due and payable to these plaintiffs by the defendants on the 14th day of April, 1848. y. That on the day of 185 , at , the plaintiffs demanded (t) payment of the same from the defendants, but that no part of the same has been paid, but the defendants are indebted to them therefor in the sum of dollars with interest from, &c. Wherefore, &c. (s) Where the defendant sold under a del credere Commission, it is unnecessary for the complaint to aver that the purchaser was in default ; and if the purchaser was in default it is not necessary for the complaint to aver a demand on the purchaser, though it might be otherwise if the factor merely guaranteed the pay- ment of a price, to be collected by the principal. Milliken v. Byerly, 6 How. Pr. R, 214 ; and see Wolff «. Koppel, 2 Den., 268. 1 Pa/rsonson Oontr.,78. (t) The rule is settled in this State that a foreign factor is not liable to an action for the proceeds of sales made by him for account of his prin- cipal on commission until a demand made by the principal, or instructions to remit. N. Y. Common Pleas, Gen. T., Walden v. Crafts, 2 AUotW Pr. B., 301; Ferris v. Paris, 10 Johns. B., 285 ; Murray v. Coster, 20 ib., 576 ; Leyerick v. Meigs, 1 Cow., 646 ; Taylor «. Bates, 5 Coio., 379 ; as explained by Lyle v. Murray, 4 Sand/., 590, 594; Cooley ®. Betts, 24 Wend., 203; Hays v. Stone, 7 Sill, 128 ; Baird v. Walker, 12 Bwri., 800 ; and see Lillie v. Hoyt, 5 Eill, 395 ; and Heubach «. Mollmann, 2 Duer, 252. It seems that a previous course of dealing between the parties might be equivalent to such demand or instructions, as establishing an im- plied agi'eement to do in the partic- ular case just what had theretofore been usual and customary in such previous dealings. Walden v. Crafts, 2 AbbotW Pr. E., 30l, 308 ; Brink v. Dolsen, 8 Pari., 337. But whether an action for not accounting might not be sustained without averring a demand, — Query? Cooley v. Betts, 24 Wend., 203. FOR MONET LENT, PAID, HAD, ETC. 77 Delivery of uote for discount. Defendant's receipt of proceeds. 9. Against note 'broker,— for proceeds of note discounted. No. 49. I. That on the day of 185 , at , this plaintiiF employed the defendant to sell or procure to be discounted a certain promissory note, the prop- erty of the plaintiff, made by one M. N. [here describe the note], and thereupon this plaintiff delivered the same to the defendant, and the defendant undertook to sell the same or procure it to be discounted for a reasonable commission, and to pay the proceeds over to this plaintiff. n. This plaintiff further states on information and belief, that on the day of 185 , [or, there- after and before the day of 185 , but on what particular day he is not informed and cannot state], the defendant did procure said note to be discounted by one O. P., and received as the proceeds thereof the sum of dollars. III. That the sum of dollars is a reasonable commission for the defendants' services therein. IV". That this plaintiff, on the day of 185 , at duly demanded from the defend- ant, payment of the sum of dollars, being the bal- ance of the said proceeds after deducting said commission, but no part thereof has been paid, and the defendant is now justly indebted therefor to this plaintiff in the sum of dollars, with interest from, &c. "Wherefore, &c. 78 COMPLAINTS. Analysis of Section III. Goods sold and delivered. SECTION in. Complaints in actions for goods sold, (n) I. — Vendor against Vendee. 1. Sale and delivery. 2. Shorter form, upon an account. 3. Sale evidenced by memorandum in writing. 4. Sale and deliveiy, anticipating and avoiding defense of pay- ment. 5. Same, anticipating and avoiding defense of an unexpired credit. 6. Against vendee, a married woman. 7. For necessaries furnished to wife or children. 8. Sale to defendant and delivery to third party. II. — Assignee of Vendor against Vendee. III. — Vendor against Vendee ; Upon a fraudulent purchase, seeking judgment for the price, and an injunction restraining sale meanwhile. I. — Vendor against Vendee. 1. Sale and Delivery. (V) No. 50. That on the 19th day of April, 1849, at the city of New York, this plaintiff sold and delivered (w) to the defendant at his request, (x) crockery, gas fixtures and glass ware, for (u) The complaints here given are without an assignment of the claim, merely in actions for recovery of a Bogart v. O'Eegan, 1 S. B. SmitKs contract price. Complaints in ac- 0. P. S., 590 ; but see White v. tions for damages for breach of con- Chauteau, 10 Barb., 202. tracts of sale will be treated here- {w) For the case where a part de- after. livery was made to take the case out {v) An auctioneer, who in his own of the statute of frauds, See form name sells goods for another, is the No. 52, post. trustee of an express trust within (s) It has been held at chambers, section 113 of the Code, and as such that it is not necessary to aver a re- may sue upon the contract of sale quest or a promise if it be averred FOR GOODS SOLD. 79 Contract price. Account for goods sold. Payments. which he promised to pay the sum of four hundred and eighty- six dollars and sixty-three cents, ■which sum thereupon [or, if a credit was given, on the day of 185 ,] became due therefor to this plaintiff, and that no part thereof has been paid [or, no part thereof has been paid except, state hriefiy amount of payments Tnade, if anyl, (y) but the defend- ant is now justly indebted therefor to the plaintiff in the sum of dollars, with interest from, &c. Wherefore, &c. 2. Shorter form, upon an account, (z) No. 51. I. That on the day of 185 , the defendant was indebted to the plaintiff in the sum of dollars on an account for goods sold and delivered by the plaintiff to the defendant at his request (a), at the city of • Buffalo, and that no part thereof has been paid, [or, no part that the goods were sold and deliv- ered to the defendant. Glenny v. Hitching, 2 Code R, 56 ; S. G. 4: Sow. Pr. R., 98 ; Victors ■». Davis, 1 Dowl. & L., 984; and see ante, 54, note (/). But in Neefus v. Klop- penburgh (2 Code B., 76), a motion to strike out as frivolous the demur- rer to a complaint which omitted to state a request, was denied. (y) It is unnecessary for the plaip- tiff to set forth in his complaint facts which are properly matters of de- fense, e. g., payments made to him on account of the indebtedness in suit. Sp. T., 1856, Van Demark v. Van Demark, 13 How. Pr. R., 372 ; and see ante 55, note (h). And he cannot be required to furnish a bill of particulars of them. Williams «. Shaw, 4 Abbotts' Pr. R, 209. (s) This form is appropriate only in an action on an account. See ante, 58, Porm No. 35, note (.s). As to when separate accounts be- tween the same parties are separate causes of action, and therefore must be separately stated, see Phillips v. Berick, 16 Johns., 136 ; Stevens v. Lockwood, 13 Wend., 644; Staples V. Goodrich, 21 Pari., 317 ; and see also Secor v. Sturgis, 2 Abbotts' Pr. R., 69 ; and Longworthy v. Knapp, 4 ib., 115. (a) See note (x) supra. 80 COMPLAINTS. Contract of sale under statute of frauds. Whether writing need be averred. thereof has been paid except, &c.J (b) but there is now dne to him thereon from the defendant, the sum of dollars, with interest thereon from, &c. Wherefore, &c. This form is supported by Allen v. Patterson, 3 Seld., 476 ; Tucker v. Rushton, 2 Code B., 59 ; Adams v. HoUey, 12 Sow. JPr. B., 326. And seeCudlipp v. Whipple (c), Ahbotts' Pr. R., 106, and Chamberlin v. Kaylor, 2 E. D. Smith's 0. P. B. 134. 3. Sale evidenced hy memorandum in writmg. No. 52. I. That on the day of 185 , at, &c. the plaintiff bargained and sold to the defendant (d), at his request, certain goods and chattels, to wit : for which- he ' agreed to pay the sum of one hundred dollars ; and that a memorandum of said contract of sale was thereupon made in writing and subscribed by the defendant (e) ; which sum (&) See ante, 65, Form No. 32, would be presumed that an agree- note (h), and note (y), mpra. ment pleaded was in writing, if (c) In Cudlipp «. Whipple, a mo- writing was necessary to its validity, tion to make such a complaint more until the contrary appeared. The definite and certain was denied by writing was matter of evidence, not Chief Justice Oakley. of pleading. Miller v. Drake, 1 Cat., (tf) Whether a count for goods 45 ; State of Indiana «. Woram, 6 bargained and sold is sustainable. Hill, 83 ; Elting v. Vanderlyn, 4 where the goods have been resold by Johns., 237 ; Cozine «. Graham, 2 vendor before suit brought, — Query t Paige, lit. It has been held in the Acebal «. Levy, lO^ijij'., 376; S. C, New York Superior Court, that, 25 Eng. Com. L. JR., 170. under the Code, the circumstances («) Whether this averment is ne- relied on to take the agreement out cessary, is not entirely settled. Pre- of the statute must be averred. 1863, vious to the Code, the rule was well Thurman «. Stevens, 2 Duer, 609 ; established that the statute of frauds Le Eoy v. Shaw, 2 ih., 626. In the did not affect the form of pleading. It former case, it was said by Mr. Just- FOR GOODS SOLD. 81 How to plead a contract -vvhich is within the statute of frauds. thereupon [or, if a credit was given, on the day of 185 ,] became due therefor to this plaintiff, and that no part thereof has been paid [or, no part, &c., except, &C.J, but the defendant is now justly indebted therefor to this plaintiff in the sum of dollars, with interest from, &c. Wherefore, &c. ice Emmet that "in order to con- stitute a cause of action against a party for the debt or default of another, the law makes it an essen- tial fact that he should have under- taken to do so by writing, subscribed by himself. The making or existence of such a writing, so subscribed, is, therefore, one of the facts cqnstituting the cause of action, and it would seem necessarily to follow that it must be stated in the complaint." In Stern v. Drinker (2 K D. Smith's C. P. -S., 401), decided in the New York Common Pleas, at General Term, in 1854, it was said by Mr. Justice Woodruff, upon the authority of cases before the Code, that it was unnecessary to aver the promise to have been made in writ- ing. But in "Williams v. The In- surance Company of North America (9 Eow. Pr. K, 365), decided by the same justice, in the same year, he laid down a general principle, which, applied to the case in question, con- firms the rule estabUshed in the Superior Court. The question before him was whether, in an action upon a policy of insurance which does not on its face show any interest in the plaintiff in the property insured, the complaint must aver such interest, 6 in order to show that the contract was not within the statute of betting and gaming ; and the language of the learned justice was as follows : "Where a statute declares that a dead or contract is void, if or pro- vided it is made in a particular manner, or upon a specified con- sideration (e. g., upon usury), it is not necessary for the plaintiff to negative the condition ; he may leave ' it to the defendant to set up the facts which bring it within the condition upon which, and upon which alone, it is void" (See Horner v. Wood, 15 Barl., 871). "But where a statute makes a deed, or agreement, or other act void, unless made upon specified consideration, or under specified cir- cumstances, the rule is reversed; the plaintiff must show that the cir- cumstances exist under which alone it can have validity; the defendant in such case may rest upon the general prohibition." Where a promise to pay a debt is relied on to take a case out of the statute of limitations, it has been held not necessary, in pleading, to allege that it was in writing, signed by the party. Lynch v. Musgrave, Hayes dc Jones, 821. 82 COMPLAINTS. Anticipating and avoiding defenses. 4. Sale and delivery, anticipating and avoiding defense it) of payment. No. 53. I. That on the day of 185 , at , this plaintiff sold and delivered to the defendant, at his request, goods, wares, and merchandise, to wit : [describe goods'] ; for which the defendant promised to pay so much as they were reasonably worth. II. That said goods were reasonably worth the sum of dollars, which thereupon [or, on the day of 185 ,] became due from the defendant to this plaintiff. {/) 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 to the exigencies of the plaintiflf's case, than from any distinct authority in the Code. It is clearly the general rule that plaintiff is not iound to anticipate a defense. His duty of pleading is performed when he has stated those facts which he will be bound on the trial to prove, in order to establish a prima-faeie right to recover. But whether he has not a privilege, in some cases, to anticipate and avoid, if he chooses to do so, is a different question, and one not so clearly settled. In Butler b. Mason {K Y. Sp. T., 1857, 5 Aihotis' Pr. R, 40), it was held that he cannot ; and to a similar effect is Clark «. Harvfood (Niagara Sp. T., 1853, 8 mw. Pr. S., 470). Opposed to these cases is that of Bracket v. Wilkinson (Living- ston Sp. T., 1856, 13 Row. Pr. B., 102). The question may in some cases become one of practical importance, in the conduct of the suit. Suppose a claim seven years old existing against a party who has in fact for upwards of one of those years resided out of the State, is to be sued. If the draftsman of the complaint states simply the facts constituting the original claim, he performs all that can be demanded of him ; for though it will be patent upon the face of his pleading that the statute of limita- tions has barred his claim, unless there is some undisclosed fact to stop the running of the statute, yet the defense of the statute can only be taken by answer ; and in the absence of such answer the complaint shows a prima-faeie right to recover. But now the defendant, although con- FOR GOODS SOLD. 83 Auticijiating defense of payment. Worthless check. III. That on the day of 185 , at , the defendant passed to this plaintiff, as if in pay- ment of his indebtedness for said goods, the check of one M. N. upon the Bank of O. P., which check the defendant represented to this plaintiff to be good ; but that on the con- trary, said M. N. then had no funds at the said bank, and his said check was worthless, as the defendant then well knew [or, was worthless, and although the same was duly presented for payment on the day of 185 it has scious that he has no real defense to the action, the statute having been undeniably suspended during his absence from the State, may answer setting up that the cause of action did not accrue within six years, and saying nothing of the complete an- swer to this defense. And "on this answer the cause must await its turn for trial. Whereas, if the plaintiff is permitted to anticipate this defense, and aver the defendant's absence, the defendant may thus be put to deny that absence under oath ; and failing (as he must^n the case stated) to do so, judgment is recovered. It certainly seems to be no strained construction of the direction to state in the complaint facts constituting a cause of action, to hold that in those cases, at least, where the defense is apparent on the face of the complaint (as in the case above stated), aver- ments necessary to meet it may be inserted. But conceding that the strict theory of pleading forbids this course in all cases, it yet remains to be noticed that the only remedy for the error, if committed, is by motion to strike out the anticipatory aver- ments as irrelevant. This motion is addressed to the discretion of the court, in this respect, that if the irrelevant allegation which has crept into the pleading will not in any event do harm to the opposite party, , the court is not bound to strike it out. Hew TorJc Gen. T., 1855, Mar- tin v. Kanouse, 2 Aibotis^ Pr. R., 330. Doubtless the motion may be granted, wherever the allegation is not one of right inserted ; but on the other hand it may be denied, wher- ever the allegation is harmless as well as useless. It is on motion of the party aggrieved thereby that the irrelevant matter in a pleading is to be stricken out. There is a certain sanction in this rule for an occasional departure from the systematic theory of pleading, where the real merits of the plaintiff's case require it; which must not, however, be trusted too far. It is with reference to its use in these rare cases, and not as a theoreti- cally approved mode of pleading, that the form given in the text has been prepared ; and the same remark applies to Form No, 54. 84r , COMPLAINTS. Vendor's action on refusal to deliver note. On false pretense. never been paid, of which the defendant had due notice (g)] ; and the defendant is now justly indebted to this plaintiff' for said goods so sold as aforesaid, in the sum of dollars, with interest from, &c. Wherefore, &c. 5. Same, anticipating and avoiding defense of an unexpired credit, (h) No. 54. ■t I. \As in Form No. 50, or 1. and 11. of No. 53.] II. That in order to induce this plaintiff to allow the defendant credit upon such sale, the defendant then falsely and fraudulently represented himself to the plaintiff to be worth a large sum, to wit, over and above all his just debts and liabilities ; whereas, in truth, he was insolvent ; and that the only credit given by the plaintiff to the de- fendant was solely induced by said false and fraudulent representations, and solely on the faith thereof. Wherefore, &c. {g) As to when the averment of Wend., 90; Yale «. Coddington, 21 demand and notice may be omitted, «5., 175 ; Corlies -o. Gardner, 2 Eall, see notes to complaints on Cheeks, 345. But where goods are sold on section ix., post. a credit which the vendee fraud- (7i) Where goods are sold on a ulently obtained, by false representa- credit, and are to be paid for by a tions, the vendor may reclaim the note or bill, and the vendee refuses goods, or may bring trespass or to give the note or bill, the vendor trover (Ash v. Putnam, 1 Hill, 302 ; cannot sue as for goods sold and Gary v. Hotailing, 1 ib., 311) ; or he delivered, until the expiration of the may waive the tort and affirm the credit ; though he may sue imme- sale, but rescind the credit ; in which diately upon the refusal, for damages case he will sue as for goods sold, for the breach of the agreement to Willson?). Force, 6 Jb^Tis., 110; Camp give the note. Hanna v. Mills, 21 v. Pulver, 5 Barb., 91 ; and see Pierce FOR GOODS SOLD. 85 Action to charge separate estate of a married woman. 6. Against vendee, a married woman. No. 55. SUPEEME OOUET, Kensselaek County. James Dickerman, against Timothy C. Abrahams, (i) and Elsie Y. R. Abrahams, his wife. The complaint of the plaintiff shows to this court : — I. That between the day of 185 , and the day of 185 , at, &c., this plaintiff furnished to the said defendant Elsie V. E. Abrahams, materials used for the building of a house for the said defend- ant Elsie V. E. Abrahams, upon and for the benefit of ( j) her own separate lands and premises, situated in the town of Watervliet, in the county of Albany. i\ Drake, 15 Johns., 475. Whether it is proper to state in the complaint matters anticipatory of a defense, see note (f), supra; and see, also, AtwiU V. Le Roy, 4 AUotis' Pr. B., 488. (i) The husbapd should be joined with the wife as defendant. Where the action concerns her separate property, the wife may sfue alone ; but it is only when the action is between herself and her husband that she can le sued alone. Code, § 114, Smith V. Scribner, 12 How. Pr. P., 501. See, however. Walker «. Swayzee, 3 AUotW Pr. P., 136. (j) There are two grounds upon which one who sells goods to a married woman may enforce pay- ment of his claim out of her separate estate ; — one, that the goods were in fact purchased by her for the ienefit of her separate estate ; the other, that she intended to charge her separate estate with payment for them. Upon either one of these 86 COMPLAINTS. Payment charged on separate estate. Construction of acts of 1848 and 1849. II. That the said defendant Elsie Y. R. Abrahams, at t£e times and place aforesaid, in consideration that this plaintiff would furnish such materials as aforesaid, promised this plaintiff that she would pay for the same as much as they should be reasonably worth out of her own separate property, and did appoint the same to be paid for out of her separate property. III. That sucli materials so furnished were reasonably worth the sum of three hundred and forty-three dollars and grounds the creditor may recover; and unless one of them can be main- tained, he cannot. North American Coal Company o. Byett, 7 Paige, 9. In the actual complaint from which the form given in the text is adapted, a state of facts embracing both grounds was shown. The goods benefited the separate estate. Also, the wife promised to pay for them out of it. In such a, case it is best to aver both the benefit and the promise ; and showing either one will entitle the plaintiff to judgment. Where the goods were sold to the wife for uses unconnected with her own estate, but she charged her separate estate with the debt con- tracted, the above averment that they were purchased for its benefit should be omitted, and the promise alleged. Where, on the contrary, there was no credit given to the separate estate, but the suit is based on an actual improvement of the wife's separate estate by the use of the goods sold, this benefit should be averred ; and the averment of any promise to pay omitted. The form of complaint above given is adapted from that employed in Dickerman v. Abrahams (21 Barb., 551). The mode of pleading adopted in that case is based upon the estab- lished principles, relative to the rights and liabilities of married women, which prevailed prior to the acts of 1848 and 1849. The weight of the decisions is, that those acts enlarged only the power of married women to hold and convey their separate estate, but did not operate to subject them to new remedies on their per- sonal contracts. Gates v. Brower, 5 Seld., 205 ; Switzer v. Valentine, 4 Duer, 96 ; Oobine «. St. John, 12 Eow. Pr. R., 333 ; Coon ». Brook, 21 Barb., 546 ; Dickerman v. Abrahams, ib., 551 ; Yale «. Dederer, ib., 286 ; Lovett v. Robinson, 7 How. Pr. R, 105 ; Phillips v. Hagadon, 12 ib., 17 ; Wotkyns v. Abrahams, 14 ib., 191. A very different view of the operation of those statutes was, however, taken by the General Term of the New York Common Pleas, in Walker v. Swayzee (3 Abbotts' Pr. R., 136) ; and the practitioner in that court will desire to consult that case before pleading. FOR GOODS SOLD. 87 Description of separate estate of defendant. thirty-two cents, whicli sum became due to this plaintiff from the said defendant Elsie Y. E. Abrahams on the day of 185 , but no part thereof has been paid [or, has been paid except, &c.J lY. (k) This plaintiff further shows on information and belief, that the premises above mentioned and hereinafter more particularly described, were, at and before the day of 185 , which was the day of the marriage of defendants, since have been and now are, her sole and separate property ; [1] and the same are bounded and described as fol- lows : [Description of premises.] "Whei-efore this plaintiff demands judgment (m) that the separate property aforesaid of the said defendant Elsie Y. E. (k) This paragraph was not in the original complaint in Diokerman n. Abrahams. Mr. Justice Wright, in a dissenting opinion, expressed the view that the complaint should have further shown that Mrs. A. had a separate estate sought to be charged, and what it consisted in, and whether the debt was contracted for the bene- fit of the estate or for her benefit on the credit of the estate. Dickerman v. Abrahams, 21 Bari. 551, see p. 554; and see note (m), infra. (I) For other avermfents showing a separate estate, see Form Nbs. 1 5 & 1 6. (m) In the complaint actually used in Dickerman v. Abrahams (21 £(M-b. 561), the prayer for judgment was as follows: — . "Wherefore the plaintiff prays judgment for the sum of three hun- dred and forty -three dollars and thirty- two cents, with interest on said sum from March 10th, 1853, to be collected of the separate property of the said Elsie V. R. Abrahams, together with the costs of this action." The judg- ment rendered at circuit on this prayer was criticised by the General Term as imperfect, in that it did not provide for enforcing the charge declared. It was held that the case was not a proper one for issuing an execution, and that a further applica- tion to the court would be necessary before the plaintiff could take the effect of the judgment he had obtained. We have accordingly modified the demand of judgment above, conform- ably to the directions given in Oobine V. St. John (Delaware 8p. T., 1856, 12 Sow. Fr.R, 883), and afterwards repeated in substance in Coon v. Brook (Madison Gen. T., 1856, 21 Barh., 546), which are as follows : — " In equitable actions to charge the separate estates of married women with debts contracted by them dur- ing coverture, the demand for judg- ment should be that the separate 88 COMPLAINTS. Eequisites of the prayer for judgment to charge married woman's estate. Abrahams, be charged with the payment of the said sum of three hundred and forty-three dollars and thirty-two cents, with interest from the day of 185 , together with the costs of this action, and that the said property be applied to the payment of the same, and that a receiver be appointed to take possession of the said separate property of the said defendant Elsie V. E. Abrahams, and dispose of the same or of so much thereof as shall be necessary to satisfy said sum and interest and the costs of this action. 7. For Neoessaries furnished to wife or children, (n) No. 56. I. That between the day of 185 , and the day of 185 , at , this plaintiff found and provided for one M. Z. then the wife \or infant son or daughter] of the defendant, at the request of said [wife or child] necessaries for her use, to wit, to the value of dollars ; which sum thereupon, \or, on the day of . 185 ,] became due therefor from the defendant to this plaintiff, but no part estate of the wife be charged with that the wife had a separate estate at the payment of the debt set out in the time the debt was contracted, and the complaint ; and that her separate of what is consisted, and its situa- estate be applied to the payment of tion and value ; and that she made, such debt; and that a receiver be or intended to make the debt appointed to take possession of the a charge or lien on such separate estate of the wife and dispose of the estate at the time she contracted it." same, or so much thereof as shall be These views are also supported by necessary to satisfy such debt and Yale v. Dederer, 21 Barb. 286. the costs of the action. In such (n) See the more recent cases re- actions the complaint should show specting the liability of the husband the nature of the debt, and if it is and parent for necessaries, collected evidenced by a promissory note or and discussed in 1 Parsons on Gon., bond, the consideration thereof; and 247, 386. FOR GOODS SOLD. 89 Delivery to third party. Who liable. Sale of store and good-will. thereof has been paid, and defendant is now justly indebted to the plaintiff therefor in the sum of with interest from, &c. Wherefore, &c. 8. Sale to defendant, and delivery to third party, (o) No. 57. That on the day of 185 , at , the plaintiff bargained and sold to the defendant, and delivered to one M. N. at the request of the defendant, certain goods, wares, and merchandise, to wit, to the value of which sum became due therefor to this plaintiff on the day of 185 , but no part thereof has been paid, and the defendant is now justly indebted to this plaintiff" therefor in the sum of dollars with interest from, &c. "Wherefore, &c. II. Assignee of Yendoe against Yendeb. For price of stock and fixtures of store and good-will of busi- ness, agreed to he paid i/n installments. No. 58. I. That on the day of 185 , at , one M. N. sold and delivered to the defendant the stock and fixtures of the drug store No. in street, in said (o) That person is liable to whom Agency, § 263, p. 213 ; SmiiKs Merc. the creditor at the time gave the Lcm, 212 ; Dixon «. Prazee, 1 E. D. credit. Storr v. Scott, 6 Gwr. & P. SmitKs G. P. E. 32 ; Briggs «. Evans, 241 ; ChitPy on Contr. 226; Story on 1 ib. 192. 90 COMPLAINTS. Sale of good- will of business. Assignment of cause of action. city, tlie property of said M. N., and bargained, sold and relinquished to the defendant the good-will of the business theretofore carried on by said M. N". there ; for which the defend- ant agreed to pay said M. N. the sum of five hundred dollars in equal quarterly payments on the days of the months of thereafter; but has not paid the same or any part thereof, except the first installment of one hundred and twenty-five dollars. II. That on the day of 185 , at , said M.. ]Sr. duly assigned (p) to this plaintifi" the indebtedness of the defendant therefor, of which the defendant had due notice, and there is now due to this plaintiff thereon from the defendant the sum of three hundred and seventy-five dollars with interest on one hundred and twenty-five dollars from and on one hundred and twenty-five dollars from, &c. Wherefore, &c. (p) An averment that " the plaintiff is now the sole owner of said demand" has been held insufficient, as being merely an allegation of a conclusion of law. The defendant has a right to be informed by the complaint how the plaintiff became the owner of the demand, whether by purchase, as- signment, operation of law, or how otherwise. Some fact or facts should be stated by which it would appear how he became such owner. Russell ■». Clapp, 7 Barl., 482 ; Bentley v. Jones, 4 How. Pr. R, 203 ; M'Murray V. Gifford, 5 ib., 14 ; Parker ■». Totten, 10 ik, 233 ; Thomas ®. Desmond, 12 ii., 321. To the same effect is Adams ti. Holley, 12 ib., 326. But is not necessary that the in- strument or mode of assignment should be stated. See Plorner «. Wood, 15 Barb., 371. A consideration is ilot necessary to the validity of" the assignment, and need not be pleaded or proved. Clark 1). Downing, 1 R D. Smith's 0. P. R, 406 ; Burtnett v. Gwynne, 2 Abbotts' Pr.E., 79 ; Vogel s.Badcock, 1 ib., 176 ; and see Martin ». Manouse, 2 ib., 830. And it has been held that an averment that a policy of insurance " was duly assigned " implied that it was assigned by a sealed instrument, and hence imported a consideration. 2d Dist. Gen. T., 1856 ; Fowler «. The New York Indemnity Insurance Com- pany, 23 Barb., 148. Before the Code the consideration must be specially set forth, or there must be an averment that the action FOR GOODS SOLD. 91 Sale induced by fraudulent representations. III. Vendok against Vendee. Ujpon a fraudulent purchase, seeking judgment for price, and an injunction restraining sale meanwhile, (q) No. 59. I. That on tlie day of 185 , at , this plaintiff sold and delivered to the defendant at his recLuest certain goods, wares, and merchandise to wit, for which the defendant agreed to pay the sum of one thousand dollars, which thereupon became due from the defendant to this plaintiff, but no part thereof has been paid, .and the defendant is now justly indebted to this plaintiff therefor in said sum of dollars with interest from, &c. n. That in order to induce the plaintiff to make said sale and delivery and with intent to defraud liim of said goods, the defendant then falsely and fraudulently represented himself to the plaintiff to be worth a large sum, to wit over and above all his just debts and liabilities. was prosecuted for the sole benefit of tract creditor cannot maintain an ac- the assignee. Prescott ®. Hull, 17 tion against the debtor and his fraud- JoJins. 284 ; and cases there cited ; ulent assignee to restrain the latter "Wheelwright®. Moore, 1 Hall, 201. from disposing of assigned property, (g') On a fraudulent purchase the and to have the assignment declared vendor may disavovF the sale and re- void and the debt paid. Whether claim the goods, or affirm the sale that is to be distinguished from the and sue for their price ; and in the former case, where the property the latter case it seems that an injunction disposition of which it was sought to may be granted under section 219 of restrain, was merchandise sold by the Code restraining the vendee from the plaintiff on the faith of the false disposing of the goods. Malcolm v. representations of the defendant, and Miller, 6 3ov). Pr. B., 456 ; Keubens the price of the merchandise was the V. Joel, 3 Kern., 488. In the latter debt for which the action was case it was held that a simple con- brought, — Query? 92 COMPLAINTS. Defendant about to dispose of his property. Analysis of Section IV. whereas in truth he was insolvent ; and that induced by said false and fraudulent representations, and solely on the faith thereof, the plaintiff made said sale and delivery. m. That thereafter, and with such intent, said defendant removed said goods to , and is about to sell and dispose of the same. IV. That the defendant is insolvent and, as this plaintiff is informed and believes, a judgment against him will be unavailing and worthless, if he is suffered to sell and dispose of said goods. Wherefore the plaintiff demands judgment against the defendant for the sum of one thousand dollars, with interest thereon from the said day of 185 , and that the defendant and his agents be enjoined from selling, disposing of, removing, or in any wise interfering with said goods or any of them, until the judgment demanded against the defendant be fully satisfied. SECTION IV. Complaints for the hire of personal property. I. — On an Accottnt foe the Hire of Horses and Car- riages. n. — ^FoR THE Hire of a Piano-forte, with Damages foe NOT EETURNIiTG IT. ni. — Foe the Hiee of Fuenitueb ok Fixtuees, with Damages foe Ill-use. I. — On an Account for the Hiee of Horses and Carriages. No. 60. I. That on the day of 185 , at , the defendant was indebted to this plaintiff in FOR HIRE OF PERSOKAL PROPERTY. 93 On account for Carriage hire. Several causes of action. the Slim of dollars, on an account (r) for the hire of horses, carriages, and saddles, theretofore by the defendant hired (s) from this plaintiff ; but no part of the same has been paid [except, state briefly the amount paid, if any (t)] ; and there is now due to this plaintiff therefor from the defendant the sum of, &c., with interest from, &c. Wherefore, &c. This form is supported by Cudlipp v. "Whipple, 1 Ablotts' Pr. B., 106 ; and Allen v. Patterson, 3 Seld., 476. II. — Foe the hike of a Piano-foete, with damages foe NOT EETURNING IT. No. 61. J^vrst : For a first cause of action, (u) I. That on the day of 185 , at , the defendant hired from this plaintiff one piano- forte, the property of this plaintiff, for the space of six months, then next ensuing, to be returned to this plaintiff at the expira- tion of said time in good condition, reasonable wear excepted, for the use of which he promised to pay this plaintiff a reason- able sum, [or, if the amount was agreed on, (T) the sum of dollars, per month.] (r) See Form No. 35, note («), his statement of defense commences, ante, bB. and where it concludes. Sp. T,,'&Q:n- (s) "Hired" implies a request. edict i;. Seymour, 6 Sbzo. Pr. i?., 298 ; Emery v. Fell, 2 T. R., 28. 1th Dist. Oen. T., 1853, Lippencott (Q See Form J7b. 32, note (h), v. Goodwin, 8 ib., 242 and note. ante, 55. And see Formal Parts of the Com- (m) The pleader should indicate plaint, Chap, ii., J'brmiVb.l, an<« 16. distinctly by fit and appropriate (v) But in case the amount was words where his cause of action or agreed on, omit the averment follow- u COMPLAINTS. Amount claimed on each cause of action. Unnecessary repetition. II. That dollars was a reasonable sum for the hire of the same ; which sum on the day of 185 , became due from the defendant to this plaintiff; but no part of the same has been paid, [except, &c.J, and the defend- ant is now justly indebted to this plaintiff therefor, in the sum of dollars, with interest from, &c. (w) Second: And for a second cause of action, I. This plaintiff further states that the value of the said piano-forte so hired by the defendant as hereinbefore alleged (x), was dollars, (y) and that the defendant not ing, as to what is a reasonable sum and continue "which said sum," &c., as in paragraph II., or if the time of payment was agreed as well as the amount, state it as in Form No. 62. (w) Unless a complaint which seeks to recover upon two causes of action shows how much is due upon each, it will be ordered to be made more definite and certain. Clark v. Farley, 3 Duer, 645. (x) Where two causes of action arise out of the same transaction, or involve the same state of facts, and are joined in one complaint, the rule that each must be separately stated does not require that the alle- gations of the first cause of action or count should be repeated at length in stating the second cause of action. Such of the facts alleged in the state- ment of the first cause of action, as are necessary to constitute the second cause of action may be supplied to that by a distinct reference to the allegations of the former cause, as above. It has been said that the allegations of each cause of action must state enough to make it good in law (Landau v. Levy, 1 Ab'botts' Pr. S., 376); but it has always been held unnecessary to restate in a succeeding count facts contained in a former count which were necessary matters of inducement to both. In such case the plaintiff might, and in some cases it was said he ought to, refer in one count to the preceding parts of the declaration. Barnes v. May, Cro. Mis., 240 ; Tindall «. Moore, 2 Wils., 14 ; Philips v. Fielding, 2 H. BlacTca., 123, 131 ; Crookshank v. dray, 20 Johns. R., 844 ; Griswold v. The Na- tional Insurance Company, 3 Cow., 96 ; Freeland v. Mc CuUough, 1 Ben., 414. But it was held in Nelson v. Swan (13 JoAns., 483), that an imper- fect count could not be helped, on general demurrer, by reference to another count which was bad. {y) The complaint in an adion to recover damages for the conversion of personal property should state the value of the property. FOE HIRE OF PERSONAL PROPERTY. 95 Demand of retvirn. Damage to plaintiff. Hire of furniture. regarding his said undertaking to return the same to this plaintiff has not returned the same, although he was on the day of 185 at requested by this plaintiff so to do, (z) to the damage of this plaintiff one thousand dollars. "Wherefore this plaintiff demands judgment against the defendant for the sum of dollars, with interest on dollars thereof, from, &c. III. Foe the hiee of Fuenituee, &c., with damages foe ILL TISE. No. 62. First : For a first cause of action, (a) I. That on the first day of May, 1857, at the city of New York, the defendant hired from this plaintiff certain household furniture, plate, pictures and books, the property of this plain- tiff, to wit, \desoribe or enumerate the articles,] for the space of one year then next ensuing, to be returned by the defendant to this plaintiff at the expiration of said time in good condi- tion, reasonable wear and tear thereof excepted, for the use of which he promised to pay this plaintiff one thousand dollars, in equal quarterly payments on the first days of August, No- vember, February and May, thereafter, but no part thereof has been paid, [except, &c. (b)], and the defendant is now justly indebted therefor to this plaintiff in the sum of one thousand (2) Where a demand is necessary ficiently certain where a demand is to perfect the cause of action it must be averred in the complaint, and must be averred like any other ma- terial fact, with certainty as to time, place, &c. The old form "although often requested so to do," is not suf- ante 55. required to be pj'oved, and is unne- cessary where one is not. 1 GMt. PI, 289. (a) See note (u) supra. (5) See Form No. 82, note (Ji) 96 COMPLAINTS. Negligence of defendant. Demand of judgment. dollars, with interest on [state interest as claimed, on the install- ments.'] (c) Second: For a second cause of action, This plaintiif further states tbat the value of the said fur- niture, plates, pictures, and books so hired by the defendant as hereinbefore alleged (d) was dollars, and that the defendant not regarding his said undertaking to return the same in good condition, took so little care of said household furniture, plates, pictures and books so hired by him, as here- inbefore alleged, that through his negligence, carelessness and ill use, the same became broken, defaced and damaged beyond the reasonable wear thereof, and in that condition were returned to this plaintiff, to his damage one thousand dollars. Wherefore this plaintiff demands judgment against the defendant for the sum of two thousand dollars with interest on two hundred and fifty dollars thereof from the first day of Au- gust, 1856, with interest on two hundred and fifty dollars thereof from the first day of November, 1856, with interest on two hundred and fifty dollars thereof from the first day of February, 1857, with interest on two hundred and fifty dollars thereof from the first day of May, 1867, together with, &c. (c) See note (w) supra. (d) See note (x) supra. COMPLAINTS FOR PURCHASE MONEY OR RENT. 97 Action for Use and Occupation. The nature of tlie cause of action. SECTION V. Complaints in actions on verbal agreements for rent or pur- chase money. I. Foe use and occupation. II. FoK GONSmEEATION MONET OF A CONVEYANCE. I. — Foe use and occupation, (e) No. 63. 185 ,at ,the That on the day of defendant hired (f ) from this plaintiff and thereupon took pos- session and thereafter and from the day of 185 , until the day of 185 , had, (e) Tenants in common may proper- ly join in an action for use and occupa- tion without sliowing a joint demise. Porter v. Bleiler, 11 Barb., 149. An infant may maintain this action al- though he has a general guardian. lb. ; and see Fitzmaurice v. Waugh, 3 Bowl. & R, 273 ; S. 0. 16 Bng. Com. L. H; 169. The husband may recover, after the death of his wife, arrears bf rent of her estate, accrued during coverture. 8th Dist. Gen. T., 1853, Jones v. Patterson, 11 Barb., 572. In an action for use and occupa- tion, demands for rent which accrued in the lifetime of a decedent, and for rent accruing after his decease, while the tenancy was continued by the executors on account of the estate. are properly joined as one cause of action, in a suit against the executors as such. Pugsley v. Aiken, 1 Kern., 494. (/) The foundation of this action is an agreement, express or implied, by which the tenant, with permission of the owner, occupied or had an exclusive right to occupy the prem- ises. Keating v. Bulkley, 2 StarJc., 419 ; S. 0., 3 Eng. Com. L. R, 411 ; Atkins 1). Scrivener, 2 G. B., 654 ; 8. G., 52 Eng. Gom. L. R, 653 ; Sel- bey v. Browne, 7 Q. B., 620 ; S. G. 53 Eng. Gom. L. R, 620. If the oc- cupation was contrary to the owner's will, his action must be for damages. Smith V. Stewart, 6 Johns., 46 ; Ban- croft v. Wardwell, 13 ib., 489; Bradshaw i;. Featherstonaugh, 1 98 COMPLAINTS. Occupation by the defendant with permission of the plaintiff. with the permission of this plaintiflf, the use and occupation of a certain house and premises known as [briefly describe prem- ises] (g) the property of this plaintiff (h) ; for which the defend- ant promised to pay this plaintiff a reasonable sum [pr, the sum of dollars, on, &c.J II. That dollars per annum is a reasonable sum therefor; but no part thereof has been paid, and the defendant is now justly indebted therefor to this plaintiff in the sum of dollars, with interest (i) from, &c. "Wherefore, &c. Weni., 134 ; Hall v. Southmayd, 15 Bari., 32. The contract may be Implied. Osgood d. Dewey, 13 /oAtj*., 240 ; Abeel v. Radcliff, ib., 297 ; Porter v. Bleiler, 17 Bari., 149 ; Ryers v. Farwell, 9 ib., 615; Harland «. Bromley, I Stark., 455 ; S. C, ^Mg. Com. L. R, 467. The plaintiff may give in evidence a lease not under seal, to prove that the relation of landlord and tenant existed, and what was the rent agreed. 1 Rev. Stat., 748 ; Williams v. Sherman, 7 Wend., 109 ; Wood v. Wilcox, 1 Ben., 37; and cases cited supra. And it has been held that since the Code a lease under seal may be given in evidence under a complaint for use and occupation. Ten Eyck v. Hough- taling, 12 How. Br. R, 523. But an occupation must be shown, which is not necessary in an action on the lease. See the ca^es infra, and Edwards v. Hetherington, 7 Dowl.R., 117; Salisbury «. Marshall, 4 Car. & P., 65 ; Cowie d. Goodwin, 9 ib., 378 ; Smith «.Marrable, 1 Car. 5 M., 479 ; Collins v. Barrow, 1 Moody &R, 112. As to what cir- cumstances constitute an occupation, see Little v. Martin, 3 Wend., 219 ; Westlake u. De Graw, 25 *., 669 ; Wood e. Wilcox, 1 Ben., 37 ; Beach V. Gray, 2 ib., 84 ; Oleves v. Wil- loughby, 7 Eill, 83; Croswell «. Crane, 7 Barb., 191 ; Whitehead v. Clifford, 5 Taunt., 518; S. C, 1 Mig. Com. L. S.,173; Connolly v. Baxter, 2 Stark, 525 ; S. C, 3 jEng. Com. L. R., 458 ; Pinero u. Judson, 6 Bing., 206 ; S. C, 19 Eng. Com. L. R., 56 ; Smith v. Twoart, 2 Mann. cfc C, 841 ; S. a, 40 Mg. Com. L. R, 883 ; Wooley v. Wattling, 7 Carr. & P., 610 ; S. a, 32 Rng. Com. L. R, 784. {g) See note (V) infra. (h) No tenancy can be implied under a party who has not the legal estate. Morgell v. Paul, 2 Mann. & iJ, 303; S. a, 11 Eng. Com. L. R, 303 ; Evans v. Evans, 3Jd. &E., 132 ; 8. C, 30 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 ; S. C, 39 Eng. Com. L. R., 195. (i) Interest may be recovered on a FOR PURCHASE MONEY OR RENT. 99 Assumpsit for consideration of a deed. Location of premisci?. II. — Foe the consideration money of a conveyance. ( j) No. 64. That on the day of 185 , at this plaintiff sold and conveyed to the defendant at his request (k) certain premises in the town of , known and described as follows : — {briefly describe premises (1)] for whicli the defendant agreed to pay this plaintiff on the day of 185 , the sum of dollars, but no part of the same has been paid, [except, &c.,J and the defend- ant is now justly indebted to the plaintiff therefor in the sum of dollars, with interest from, &e. Wherefore, &c. claim for use and occupation. Ten Eyck r. Houghtaling, 12 Eow. Pr. R, 523. ( j) Assumpsit will lie for the con- sideration of a deed, although there was no valid contract under the statute of frauds, (Thomas v. Dickin- son, 2 Kern., 364,) and that not- withstanding the deed contain a receipt for the consideration. Shep- ard V. Little, 14 Johns., 210 ; Bowen V. Bell, 20 ib., 338; Thomas v. Dickinson, 2 Kern., 364, and cases there cited ; and see the cases as to the force of the receipt in the deed, collected in an Article on Receipts, 1 Livirigston's Law Mag., (1853,) 225, 229. (k) As to the necessity of an aver- ment of request in assumpsit for the purchase money of lands, see 1 Saund., 264, note 1. Comstock v. Smith, 7 Johns, i?., 87, and cases there cited. Parker i;. Crane, 6 Wend., 647. (l) It is said that in assumpsit for lands sold, &c., as well as for use and occupation, it is unnecessary to state the situation, &c., of the lands, and unadvisable to do so, because a variance would be fatal. 2 Ohitty'» PL, 39 note e ; 42, note g. But under the Code, the variance would be disre- garded, unless it was shown to have misled the defendant ; and a descrip- tion sufHcient to identify the premises is necessary to give the complaint the requisite deflniteness and cer- tainty. 100 COMPLAINTS. Analysis of Section VI. Special Contracts. Services of Attorney. SECTION VI. Complaints in actions for services, (m) 1 . By an attorney, — for services and disbursements. 2. By principal of school, — for tuition bills. 3. By a writer, — for services in editing a newspaper. 4. By a writer, — for services in editing or compiling a book. 5. By an arcbitect, — for bis services. 6. By proprietors of a newspaper, — for advertising. V. By advertising agent, — for services and disbursements. 8. By a clerk, — for salary. 9. By a hired servant, — for wages. 10. On an account for work and materials. 11. On a special contract, completely fulfilled. 12. On a special contract, modified by parol, with a claim for extra work. 1. liy an Attorney for Services and Disbursements. * No. 65. I. That on the day of 185 , at , the defendant was indebted to this plaintiff in (m) The forms comprised in this ler, 18 *., 169; Wood «. Edwards, section are appropriate for actions for 19 «6 , 205 ; Smith v. Smith, 1 8ana,f., services rendered in pursuance of a 306 ; Ladue v. Seymour, 24 WeriA., verbal agreement. But where the 60 ; Sherman v. The New York Cen- work was undertaken in pursuance of tral_ Railroad Company7~22r&r^ a MT-iMfireconimc^, they are the proper 2.S9 ;1taams"«. The Mayor, &c., 4 forms only in case the contract has Duer., 295. Where there is a written been abandoned by agreement, or contract which has been completely rescinded by the wrongful act of a executed, or has been modified by the party. Where, however, there has parties, or extra work has been done, been a written contract, the plaintiff the contract should be specially must in any case produce it on the pleaded, and performance or excuse trial, or account for its absence.— for non-performance shown. See Clark i). Smith, 14 Jolim., 326, and «o«« (e)^os<, 112. cases there cited ; Champlin v. But- FOR SERVICES. an Action by Attorney for services and disbursements. the sum of upon an account (n) for the services of the plaintiff as the attorney of the defendant, rendered upon his retainer (o) in prosecuting and defending certain suits and for like services at his request in drawing, copying, and engrossing various instruments of writing, and in counseling and advising him, the defendant, and for divers journeys and other attendances in and about the business of said defendant, (n) See lorm No, 85, note (s) ante, 58, (o) Previous to the Code, the value of an attorney's services in the conduct or defense of a suit was measured by the statutory rate of costs ; it being held in cases where there was no express agreement be- tween attorney and client, that the law would imply a promise on the part of the latter to pay the attorney the statute rate of compensation. Scott V. Elmendorf, 12 Johns., 315 ; Brady v. The Mayor, &c., of New York, 1 Sandf., 569. And, as be- tween attorney and client, the costs were taxed under the statutes in force at the time when the services were rendered. The Brooklyn Bank «. Willoughby, 1 Sandf., 669. But since the Code, the costs prescribed by the provisions of that act, as be- tween party and party, are not a measure of the attorney's compensa- tion. They do not define or limit the sum that he may justly claim for his services. His compensation, where there is no express agreement, is left to depend upon the agreement that the law will imply ; and the only agreement tha,t the law can imply is, that the sum to be paid shall be pro- portioned to the value of the services performed ; and it is manifest that the sum which a court and jury in the exercise of a reasonable discretion may allow, may be greater or less than the amount of the costs that are given by the Code. N. Y. Su- 2}trior Gt., Gen. T., 1851 ; Moore v. Westervelt, 3 Sandf., 762. Thus the claim for compensation for the attorney's services now stands in this respect on the same ground with claims arising out of other employ- ments. In the absence of an agree- ment fixing the rate of compensation, a quantum meruit will be the mea- sure of the recovery. In an action by an attorney for his fees, it is necessary to aver and prove on the trial, a retainer or em- ployment of the plaintiff as attorney, in the suit or business in which his services were rendered. Merely to show the performance of the services, is not suiBcient. Hotchkiss «. Leroy, 9 Johns., 142 ; Burghart v. Gardner, 3 Barb., 64, It is not necessary, however, to shaw a written retainer ; that was anciently required but is so no longer, though the practice of taking written retainers has been strongly recommended. Owen «. Ord, 3 Carr. & P., 840 ; Wiggins v. Peppin, 3 Bewo., 340. See also, Allen V. Bane, 4 ib., 493. A parol employ- ment will suffice; or the jury may 102 COMPLAINTS. Evidence of retainer. Complaint on School bills. at his request ; (p) and for money paid out and expended by this plaintiff for the defendant at his request, in and about said suits and business, -which sum became due (q) from the defend- ant to the plaintiff on the day of 185 . II. That on said day [or, on the day of 185 , at ,J payment of the same was duly demanded (r) from the defendant by this plaintiff, but no part thereof has been paid [except, &c. (s)] Wherefore, &c. This form is sustained by Beekman v. Platner, 15 Bari., 560 ; and see 2 CMtti/'s PI., 68. 2. Bi/ Principal of School,— for Tuition Bills. No. 66. I. That on the day of 185 , the defendant was indebted to this plaintiff in the sum of forty- seven dollars, upon an account (t) for the work, labor and ser- vices of this plaintiff and his assistants, rendered to the defend- infer a retainer from acts of the client In the progress of the suit amounting to a recognition of the attorney, or from his undertaking to pay for the services. A pleading drawn in the handwriting of the attorney and sub- scribed by him, but verified by the party, is sufficient evidence of a rec- ognition of the attorney as such in the suit in which such pleading was put in. Harper v. Williamson, 1 McGwd, 150. (p) See Form No. 74, note (r), post, 108. (j') The complaint must aver or show that the debt has become pay- able before commencement of suit. Allen ®. Patterson, 3 SeM., 476. (r) Demand is unnecessary except to charge the defendant with inter- est, and therefore need not be averred unless it is intended to claim interest. See Form No. 33, note (n), ante, 57. (s) See Form No. 32, note (h), ante, 56, and Form No. 50, note {y), ante, 79. {t) See Form No. 35, note (s), ante, 68. FOR SERVICES. 103 For tuition, books, etc., and for board. For services of a Writer. ant at his request, (u) at the town of , in instructing the defendant's children 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 children provided by the plaintiff during said time, at the like request], which sum became due to this plaintiff therefor from the defendant on the day of 185 , (r) but no part thereof has been paid. Wherefore, &c. 3. By a Writer,— for Services in Editing a Newspaper. No. 67. I. That between the day of 185 , and the day of 185 , at the city of Albany, this plaintiff rendered services to the defendant at his request, (w) as an editor, in conducting the newspaper of the defendants known as " The ," and in writing and preparing articles and paragraphs for the same ; for which services the defendants promised to pay* so much as they should be reasonably worth, (x) («) See Form No. 74, note (r), at the request of the publisher is no fosi, 108. of itself a service for which a promise (i;) If interest is claimed, close this to pay will be implied. See, as to paragraph here, and add paragraph the rights of the author without copy- II., as in Form No. 65. right. Opinion of Lord Campbell in (w) See Form No. 74, note (r), Donaldsons v. Becket, 17 Pari. lEat., post, 108. 990 ; judgment reported in 4 Burr., (x) A stronger case is required to 2408 ; Thurlow, arg. in Tonson v. raise an implied promise on the part Collins, 1 W. Blachit, 306 ; Yates, of the publisher to pay for the serv- arg ., ib., 833 (this case was never ices of the author, than in the case of decided) ; Beckford v. Hood, 7 T. R, other services; and it seems that the 620, and see 627; Ohappell «. Bir- furnishing of articles for publication dy, li Mees. & W., 303; Jeffreys'!). 104 COMPLAINTS. For services of a Writer. II. That the same were reasonably worth* dollars, which siiin became due therefor on the day of 185 , but no part of the same has been paid, and the defend- ant is now justly indebted to the plaintiff therefor in the sum of dollars, from, &c. Wherefore, &c. i. By a Writer,— for servioesin Editing or Compiling a BooJc. No, 68. I. That between the day of 185 , and the day of 185 , at the city of Albany, this plaintiff rendered services to the defendant, at his request, (y) as a writer, in compiling and editing a certain book entitled " The ," and in preparing the same for the press, and revising and correcting the proofs of the same, for which the defendant promised to pay dollars, which sum became due therefor on the day of 185 . II. That on said day [or, on the day of 185 ,J at , payment of the same was duly demanded (z) from the defendant by this plaintiff, but no part thereof has been paid, [except, &c.,] and the defendantisnowjustlyindebt- ed to the plaintiff therefor in the sum of dollars, with interest thereon from the day of 185 . Wherefore, &c. Boosey, 30 Eng. L. & E. i?., 1; asterisks, thus making one paragraph Wheaton d. Peters, 8 Pet 591; iS'. of this complaint. See Form following. C, 11 Ciirtii' Deals., 223. {y) See Form Ko. 74, note (r), If the promise was to pay a specified post, 108, and see note (,i'), supra, sum, omit the words between the (2) See note (r), supra. FOR SERVICES. 105 For Arcliitect's services. For Advertising. 5. By an Architects—for his Services. No. 69. That between the day of 185 , and the day of 185, at , this plaintiff rendered services to the defendant, at his request, (a) as architect, in forming and drawing plans, and making estimates for, and superintending the erection of a dwelling-house to be known as Xo. in street for which, the defendant promised to pay [so much as the same should be reasonably worth. II. That the same w^ere reasonably worth] dollars, •which sum became due therefor on the day of 185 , bnt no part thereof has been paid, [except, &c. (b)], and the defendant is now justly indebted to the plaintiff there- for in the sum of dollars. Wherefore, &c. 6. By Proprietors of a Newspaper,— for Advertising. No. 70. I. That these plaintiffs, at the times hereinafter mentioned, w-ere the proprietors and publishers of the daily newspaper known as "The ," published in. II. That on the day of 185 , [or if there were several insertions, between the day of 185 , and the day of 185 ,j these plaintiffs rendered services to the defendant at his request (c) in publish- ing in their said newspaper the advertisements of the defend- (a) SeoFormM. 74:, note (r). post, (c) See Form No. 74, note (r), 108. post 108. If the charges are a matter (b) See Form No. 32, note Qi), of account, state it as in Form No. ante 35 ; and Form No. 50, note (y), 66, ante 102. ante 79. 106 COMPLMNTS. For services and disbursements of Advertising Agents. ant, for which lie promised to pay [so much as thej should be reasonably worth. III. That the same were reasonably worth] the sum of dollars, which sum became due (d) therefor on the day of 185 . IV. That on said day [or, on the day of 185 ,j at , payment (e) of the same was duly demanded from the defendant by these plaintiffs, but no part of the same has been paid [except, &c. (f)], and the defendant is now justly indebted to these plaintiffs therefor in the sum of dollars with interest from the day of 185 . Wherefore, &c. 7. £y Advertising Agent,— for Services and Disbursements. No. 71. I. That at the times hereinafter mentioned the defendants were partners, doing business in the city of New York under the firm-name of Y. Z. & Co. (g) II. That between the day of 185 , and the day of 185 , at , this plaintiff rendered services to the defendants at their request (h) in causing the defendants' advertisements of their business to be inserted in the following named newspapers and periodicals ; \names of papers']. III. That this plaintiff, for such insertions, paid to the use of the defendants, and at their request, the sura of dollars, the amount of which payments, together with a reason- {d) See note (r), supra. is likely to be drawn in question it («) See note (s), supra. will sometimes be better to aver the (/) See Form No. 32, Tiote (A), fact distinctly. See Oechs ». Cook, ante 55 ; and Form No. 50, note {y), 3 Duer, 161. ante 79. (A) See note (r), infra. - (g) Where the fact of a partnership FOR SERVICES. 107 For services of Clerk or other Employee. able sum for said services, the defendants promised to pay this plaintiff, (i) IV. That such services were reasonably worth the sum of dollars, wliich sum, with the amount of said disburse- ments, became due on the day of 185 , but no part thereof has been paid [except, &c. j, and the defendant is now justly indebted to the plaintiff therefor in the sum of dollars. "Wherefore, &c. 8. By a Cleric,— fur Salary. > No. 72. I. That between the day of 185 , and the day of 185 , at the city of Albany, this plaintiff rendered services to the defendant at his request ( j) as clerk of the defendant in and about the business of the defendant, fur the space of months, for services which the defendant promised to pay [so much as they should be reason- ably worth. n. That said services were reasonably worth] dollars, which sum became due therefor on the day of 185 . III. That on said day [or, on the day of 185 ,J at , payment of the same was duly demanded (k) from the defendant by this plaintiff, but no part thereof has been paid [except, &c. (1)], and the defendant is now justly indebted to this plaintiff therefor in the sum of dollars, with intei-est thereon from the day of 185 . Wherefore, &c. (i) If the contract was in writing, {h) See Form No. 83, note (re), as is usual in large transactions, it ante 57. should be specially pleaded. See {I) See Form No. 82, note (A), ante note (m), supra ; and note (y), infra. 55 ; and Form No. 50, note (y), ante (j) See rwte (r), infra. 79. 108 COMPLAINTS. F(ir wages generally. For work and materials. Eequest necessary. 9. By a Hired Servant^— for Wages. No. 73. That between tlie day of 185 , and the day of 185 , at the city of Albany, this plaintiif rendered services to the defendant at his request (m) as the hired servant of the defendant for the space of months, for which the defendant promised to pay the sum of dollars per month; and that tlie sum of dollars became due therefor on the day of 185 , but no part of the same has been paid [except &c. (n)], ^ ,and the defendant is now justly inltebted to this plaintiff, therefor in the sum of dollars, (o) _ Wherefore, &c. , ^ y 10. On an Account for Work and Materials, (p) No. 74. That on the day of 185 , the defendant was indebted to this plaintiff in the sum of dollars on an accoimt for the services of this plaintiff [and bis serv- ants] rendered to the defendant (q) at his request (r) at the (m) See note (r), infra. plead the agreement specially. See (n) See Form No. 82, note{h), ante note (m), supra; and Forma No. 75 55 ; and Form No. 50, note (y), ante and 76 and notes. 79. (r) The fact that the plaintiff has (o) If interest is claimed state de- rendered valuable services to the de- mand of payment as in Form No. 65. fendant for which the defendant has ip) See notes and authorities to refused to pay him, constitutes no Form No. 35, 7iote (s), ante 58. cause of action. The services must {q) If the services were rendered have been rendered in pursuance of pursuant to a written agreement, it an agreement express or implied that will in many cases be necessary to they were to be paid for. Maltby ii. FOR SERVICES. 109 Statement of services in the Account. town of , in [/ie?' , on which day the whole of said work was by this plaintiff completed. III. That the sum of dollars is a reasonable payment to be made in addition to the price named in said contract, for covering said roof with slate instead of shingles. lY. 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. the form given above, but the practi- tioner will not follow it without ob- serving that it may be objected to it that in one sense it does not literally comply with the requirements of section 162 in that it does not aver performance of all the conditions. The objection does not commend itself to our view, but we do not find that it has been passed upon. For the old rules for averring per- formance of conditions precedent, see 1 Ghitt. PI. ed. 1828, 283. Hatch ». Peet, Monroe Oen. T, 23 Barl., 575. Where the plaintiff does not rely on performance of a condition pre- cedent, but on facts excusing non- performance, he should aver the 8 excuse, stating the particular circum- stances which constitute it. Under an averment of performance, evidence of facts excusing non-performance is not admissible. Oakley v. Morton, 1 Kern. 26 ; Holmes v. Holmes, 5 Seld., 526, and cases cited ; Crandall ®. Clark, T^arJ., 169 ; 1 Ghitt. PI, 284. (/) See note (h), infra. These de- viations from a supposed contract ar? given as illustrations of the method of stating the modifications, and the performance of the contract as modi- fied. (g) If the promise was to pay a certain sum or at a certain rate, state the sum here and omit paragraph HI, and so of the next averment. 114 COMPLAINTS. Demand. Count for extra work. day of 185 , at Y. That on the 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 defendants by this plaintiff, but no part thereof has been paid (h) except, &c. (1)], and the defendants are now justly indebted to the plaintiff therefor in the sum of dollars, with interest from the day of 185 . ( j) Second. And for a second cause of action, (k) I. This plaintiff further states that between the day of 185 , and the day of 185, at , he rendered further services to the defendants at their re- quest (1) in [here state extra work done, and materials furnished therefor'], for which the defendants promised to pay (m) so much as they should be reasonably worth. II. That the same are reasonably worth dollars, which sum became due therefor on the day of (A) The coioplaint must aver a breach, unless it is on " an instru- ment for the payment of money only,'' and follows the form prescribed in the latter clause of section 162. See note (b), supra. The averment of a demand may be omitted wher- ever no demand is necessary as the^ foundation of the breach, except where it is desired to prove a demand, to charge the defendant with interest. (i) See Form No. 50, note (y), ante 79. ( j) See note (o), infra. (k) Whether extra work is to be stated as a separate cause of action or not must depend upon thp circum- stances of the case. If it was done as a consequence of a modification 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 contract, it is more prop- erly to be treated as a second cause of action, based upon an independent verbal contract. Where the extra work is matter of account, it wiU be better to use Form No. 74, as a state- ment of this cause of action. (Z) See Form No. 74, note (r), ante. (m) If the sum was agreed on, omit the next fourteen words, making but one paragraph of the statement of this second cause of action. PROMISSORY NOTES. 115 Analysis of Section VII. 185 , (b) but no part thereof has been paid, and the defend- ants are now justly indebted to this plaintiff therefor in the sum of dollars. (O) Wherefore, &c. SEOTIOSr VII. Complaints on Negotiable Promissory Notes, (p) I. — Payee against Makee. 1. On a note payable at a certain time after date ; setting out a copy of the note. 2. On the same ; another form, pleading legal effect of the note. 3. On a note payable at a certain time after sight. 4. On two notes, one having been partly paid. 6. On a note signed by attorney in fact. 6. On a note wrongly dated. 7. On a note made by partners. 8. On the same ; another form, averring partnership of the makers. 9. By partners, on a note payable to the order of their finn name. 10. By a surviving partner, on a note payable to the order of his late firm. 11. By payee against surviving maker. (») The complaint must show in more definite and certain. Clark v. some way that the debt became due Parley, 3 Buer, 645. before the commencement of the ac- (^) The Forms in this section are tion. Allen ». Patterson, 3 Seld., also appropriate for notes drawn with- 476. out the words " or order," " or bear- (o) A complaint stating two causes er," or the like. The statute 3 and 4 of action must show how much is Anne, ch. 9, § 1, provided that all claimed upon each. If it do not, it notes in writing whereby any per- may be required to be amended in son should promise to pay to any this respect by a motion to make it other person or persons, his, her, or 116 COMPLAIlfTa. Analysis of Section VII. 12. By a manufacturing corporation formed under the general . act, payees, against a foreign corporation, makers. 13. By a receiver, payee, against partners, makers. 1 4. By the treasurer of an unincorporated company, on a note payable to the former treasurer of the company. II. — Indoksise against Maker. 1. First indorsee against maker, 2. Second or later indorsee against maker. 3. First indorsee against maker, on note payable to the maker's order, and by him indorsed to the plaintiff. III. — Indoksek against Indorsee. 1. First indorsee against payee, indorser. 2. Remote indorsee against indorser, on note made by partners, pleaded according to legal effect. 3. Indorsee against indorser ; non-presentment excused be- cause the maker could not be found. 4. Indorsee against indorser who has waived notice. IV. — Indorsee against Maker and Indorsee. 1. First indorsee against maker and payee, indorser. 2. Eemote indorsee against maker, first indorser, and a later indorser. 3. Indorsee against maker and indorser, on a note payable on demand. V. — Payee against Maker and Indorsee. Payee having parted with full value on the faith of the indorse- ment. their order, or unto bearer, any sum Smith v. Kendall, 6 T. S., 123, of money, &c., should be construed and cases cited arg. The New to be payable to any such person or York statute is substantially the persons to whom the same was made same with that of England, and the payable, &c., &c. ; and gave an action English decisions to the above effect upon such note to the persons to have always been recognized as appli- whom it was made payable. It was cable here. Downing v. Backenstoes, early held that a written promise to 3 Cai. 137 ; The Goshen and Minisink pay " to W. B.," without adding " or Turnpike Co. «. Hurtin, 9 Johns., 217. order," or " or bearer," was a prom- For complaints on notes payable in issory note within the statute. Bur- chattels and the like, see Section x., chell V. Slocock, 2 Ld. Saym., 1545 ; poet. PROMISSORY NOTES. 117 Complaint under Section 162. I. Payee against Maker. 1. On a Note fay able at a Certain Time after Date, Setting out a Copy of the Note, (q) No. 77. I. That on tlie 7th day of April, 1854, the defendant \niaTcer] made (r), and delivered (s) to this plaintiff his promis- sory note in writing, of whicli the following (t) is a copy : (u) (q) This metliod of pleading " an instrument for the payment of money- only," authorized by sec. 162 of the Code (ante, 7), although the most con- venient in general, is not obligatory. The pleader may still set out the in- strument according to^its legal eflfect. See Forma No. 78, and notes. (r) A complaint, although drawn under action 162, should nevertheless aver that the maker made the note. Price «. McClare, 3 AUotW Pr. £., 253, and cases there cited ; Bank of Geneva v. Gulick, 8 ffow. Pr. R., 51. But to the contrary is Roberts v. Morrison, 11 N. Y. Leg. Ols., 60 ; and Marshall «. Rockwood, 12 How. Pr. R, 452. (s) The mere execution of a note without a delivery constitutes no con- tract. Marvin v. McCuUum, 20 Johns. 288 ; Powell «. Waters, 8 Cow., 669 ; Bank of Rutland v. Buck, 5 Wend., 66. It is usual and proper, therefore, to aver a delivery {Ghitty on Bills, 552 ; Edwards on Bills, 671) ; but it has been held that, as against the maker, an averment of delivery by him is not essential in a complaint under section 162 of the Code (ante 7), Sp. T., 1854, Chappel v. Bissell, 10 How. Pr. R, 274 ; Sp. T., 1855, Marshall v. Rockwood, 12 How. Pr. R., 452 ; Peets v. Bratt, 6 Barb., 662. In an unreported case, Mr. Justice Clerke refused to strike out as frivol- ous a demurrer to a complaint which omitted this averment. But in Rus- sel ■». Whipple (2 Cow., 536), judg- ment for the plaintiff was given on such a demurrer as frivolous. And see note (g) infra; and see, as to where delivery may be implied, Purdy v. Vermilyea, 4 Seld., 346 ; and see note (g) infra, and Form No. 89, note (d), post, 133. (i!) Under the old practice stricter proof was required of an instru- ment if pleaded in Jicec verta, than if pleaded according to its legal effect. This rule seems to have been abolished by the Code. (v) Where the action is on an in- strument written in a foreign Ian- 118 COMPLAINTS. Copy of the note. Consideration. Plaintififs ownership. "$300." "Teot, October, 11, 1854." " Four months (v) after date I promise to pay to the order of G. (w) N. Marshall three hundred dollars, value received, (x) (Signed) "G. G. KOCKWOOD." n. (y) That there is now due (z) to this plaintiff thereon, guage, the more convenient way will be to plead it according to its legal effect. See Forms Nos. 78, 87, and 93. But if the pleader desire to fol- low the method authorized by section 162, he may set out the note first in the original to meet the requirement of that section, and then add " of which the following is a translation," setting out a translation to meet the I'equirement of the statute that plead- ings shall be in the English language (2 Rev. Stat. 275), as well as that of the common-law principle, that the court does not take notice of the mean- ing of words of a foreign language. It will also be most convenient to plead according to the legal effect, where the note is payable to the order of a fictitious person. In such case, and in case it is payable to the maker's own order, it is in law payable to bearer, 3 Eev. Stat. 178; Minet v. Gibson, 1 M. Blaclcst., 569 ; Masters V. Barrel, 3 Car. & K., 715 ; Plets v. Johnson, 3 EM, 112. («) See note (e) infra. (w) This will be construed to mean the plaintiff. An independent aver- ment, that G. N. Marshall is Gilbert N., the plaintiff, is not necessary, Sp. T., 1854, Chappel v. Bissell, 10 Sow. Pr. £., 274; ^. T., 1855, Marshall v. Rockwood, 12 ib., 452. (x) Formerly no consideration need be averred ; it was saiAnone need be proved. Bank of Troy v. Topping, 13 Wend., 657 ; Goshen Turnpike Company ». Hurtin, 9 Johns., 217 ; Conroy v. "Warren, 8 Johns., Cas.^ 259. The more correct statement would be, that a consideration must be proved, and that this is done prima facie by the mere production of the note upon the trial. See Ben- son V. Couchman, 1 Code B., 119 ; Hughes «. Wheeler, 8 Cow., 77. (y) I^ is usual to insert here, " that the plaintiff is the lawful owner and holder of said note, and that there is now due," &c. This, or its equivalent is necessary where the complaint does not otherwise show that the plaintiff is the owner of the note. But where the facts before stated show his title, as by averring that it was drawn to his order, or indorsed to him by the payee, it is superfluous to aver that he is the owner and holder. Benson v. Couchman, 1 Code E., 119; Appleby ■0. Elkins, 2 Sanif., 673 ; S. C, 2 Code E., 80; Taylor v. Corbiere, 8 Eow. Pr. E., 385 ; Loomis ■». Dors- heimer, 8 ib., 9 ; The Blank of Low- ville «. Edwards, 11 *., 216; Peets V. Bratt, 6 Barb, 662.' And when the plaintiff's title is otherwise shown, a denial that be is the lawful owner and holder is frivolous. Catlin v. Gunter, 1 Buer, 253, and eases there cited I Fleury v. Roget, 5 Sand/., 646. (2) It should appear from the com- PROMISSORY NOTES. 119 Statement of the amount due. Pleading legal effect. from the defendant, (a) the sum of three hundred dollars, with interest (b) from the 14th day of February, 1855. Wherefore, &c. This form is suppoi-ted by Ohappel v. Bissell, 10 JIow. Pr. JR., 2T4: ; Marshall v. Edckwood, 12 ih., 452 ; Keteltas v. Myers, 1 Ahbotis' Pr. E., 403 ; The New York Floating Derrick Company v. The New Jersey Oil Company, 3 Duer, 648 ; And see Esselstyn v. Weeks, (Court of Appeals), 2 AUotts' Pr. B., 272, note. 2. On the same Another Form., Pleading Legal Effect of the Note, (c) No. 78. I. That on the day of 185 , at , the defendant [makerl made his promissory note in writing dated on that day, and thereby promised to pay to this plaint that the note is already due. If the contrary appear, the complaint is demurrible. Waring v. Yates, 10 Johns., 119 ; Lowry «. Laurence, 1 Cai., 69. But it is not necessary that the complaint allege that the time for payment has elapsed. It is enough that that appears by reasonable in- tendment. Peets V. Bratt, 6 Ba/rb., 662 ; Maynard b. Talcott, 11 ib., 569. As to part payments, see note (f) infra. (a) See Code, § 162, ante, 7. It has been held, that a complaint which, after setting out the note and plaint- iflfs ownership, simply states that there is due the plaintiff the sum claimed, without stating that it is due on the note and from the defendant, is bad on demurrer. Keteltas v. Myers, 1 Abbotts' Pr. R, 403. (J) Demand of payment is not necessary, to charge the maker with interest. See note (q) infra, (e) The plaintiff is under no obli- gation to draw his complaint by set- ting forth a copy of the instrument, in the mode authorized by section 162 of the Code. The Mayor, &c. ■». Doody, 4 Abbotts' Pr. R, 127. This form will be found most convenient in pleading on a note written in a foreign language. See note (u), supra. 120 COMPLAINTS. Variance in time. Averment of delivery. Breach. plaintiff (d) or his order months (e) after said date the Slim of dollars, for value received, (f) and delivered it to tliis plaintiff, (g) II. (h) That said note las not been paid (i) nor any part thereof [except, &c. ( j)], but the defendant is now justly- indebted to him thereon in the sum of dollars, with interest from the day of 185 . Wherefore, &c. This form is supported by "White v. Joy, 3 Kern., 83 ; Peets V. Bratt, 6 Barh., 662, and cases cited under Form m. 77. 3. On a JVbte payable at a Certain Time after Sight. No. 79. I. That on the 11th day of October, 1854, the defendant (d) A complaint pleading a note according to its legal effect must state a payee, otherwise it seems it is de- murrible. White ■!). Joy, 3 Kern. 83. («) In Trowbridge v. Didier, the Superior Coart held, that a variance of one month in the time of a note described was properly disregarded as immaterial, the defendant not hav- ing been misled. 4 Buer, 448. Where no time of payment is named the note is due immediately. Thompson «. Ketchum, 8 JoJim., 189 ; Gaylord v. Van Loan, 15 Wend., 308; Peets v. Bratt, 6 Barb., 662 ; and interest runs from date, and without demand. (/) It is usual to aver a consider- ation thus, when the complaint is not drawn under section 162. See note (x), supra. (g) This complaint would not be bad on demurrer for omitting the averment of delivery. It has been held, that a declaration stating that " the defendant by his promissory note promised to pay the plaintiff, or," &c. implies a delivery of the note. Churchill v. Gardner, V T. R, 596 ; Chamberlain v. Hopps, 8 Verm., 94 ; Peets V. Bratt, 6 Barb., 662. But it is usual and proper to aver a delivery, Ohitty on Bills, 552 ; Edwards on Notes, 671 ; and see note (s), supra. (Ji) See note {y), supra. (i) If the complaint is not drawn under section 162, it must aver a breach. Keteltas v. Myers, N. Y. Common Pleas Gen. T., 1855, 1 Ab- botts' Pr. P., 403. (j) See Form No. 32, note Qi), PROMISSORY NOTES. 121 Presentment of note payable after sight. Several notes. [pnaker] made and delivered to this plaintiif Lis promissory note in writing of wliich the following is a copy : — " nth October, 1855. "Six days after sight, I promise to pay to the order of G. N. Marshall three hundred dollars, for value received. " (Signed) G. G. EOCKWOOD." (k) II. That on the first day of November, 1855, at , said note was duly presented to the defendant \maher\ with notice that payment was required according to the terms thereof. (1) III. (m) That there is now due (n) to this plaintiff thereon, from the defendant (o) the sum of three hundred doUarsj with interest from the 9th day of November, 1855. Wherefore, &c. 4. On Two Notes, One having been Partly Paid. No. 80. First. For a first cause of action, (p) I. That on the 7th day of April, 1854, the defendant \maker'\ made and delivered to the plaintiff his promissory note^in writing, of which the following is a copy : " $1,500. ' Kochester, April 7, 1854. " Three months after date I promise to pay to the order of anU, 55 ; and Form No. 50, thote., (y), a condition precedent. See 2 Ghit. ante, 79. Fl-, 134. (Jc) See authorities to Form Wo. It, (m) See Form No. 77, note (y), ante, 117. ante. 118. (I) Averment of presentment of a (n) See note (t), infra. note payable on demand is not neces- (o) See Form No. 77, note (a), sary to charge themaker, even though ante, 119. it be payable at a particular place. (p) Several notes are several causes See note (q), infra. of action, and must be separately sta- But in a note payable at a certain ted. Van Namee ■». Peoble, 9 Eow. time after sight the above allegation Fr. B., 198 ; Dorman u. Kellam, 4 seems necessary ; for " sight " is then Ablotts' Pr. B., 202. 122 COMPLAINTS. Demand need not be averred, as against the maker. J. Chappell fifteen hundred dollars at the Rochester City Bank, (q) with interest, value received. "(Signed) J. W. BISSELL."(r) II. (s) That there is now due (t) to this plaintiff thereon, from the defendant (u) the sum of seven hundred and ninety- one dollars and sixty-four cents (v) with interest from, &c. Second. For a second cause of action, (w) I. \^As paragraph I. in statement of the first cause of action.] II. That there is now due to plaintiff, thereon, from the defendant, the sum of fifteen hundred dollars with interest from, &c. Wherefore the plaintiff demands judgment against the defendant for the sum of two thousand two hundred and ninety-one dollars and sixty-four cents, with interest on seven hundred and ninety-one dollars and sixty-four cents thereof from, &c., and with interest on one thousand five hundred dollars thereof from, &c., together with, &c. (y) In a complaint against the (s) See Form No. 77, note (]/), maker of a note payable at a particu- ante, 117. lar .place, even though it be by its (t) The plaintiff is not in any case terms payable on demand there, it is bound to set out payments that have not necessary to aver presentment at been made to him. See Form No. the place of payment. The want of 50, note (y) ante, 79. In pleading such presentment must be set up by on an instrument for the payment of the dgfendant, if he desires to avail money only, under section 162, he is himself of such fact and of his rea- not required even to refer to pay- diness to pay there, and then the ments, but it is sufficient to state, in defense goes not to the cause of ac- the words given above, the balance tion, but to damages and costs. Wol- remaining due. Chappell v. Bissell, cott V. Van Santvoord, 17 John., 248 ; 10 Mow. Pr. R., 274. Caldwell v. Cassidy, 8 Cow., 271 ; {u) See Form No. 77, note (a), Haxtun ». Bishop, 3 Wend., 1 ; Green ante, 117. V. Goings, 7 Barl. 652 ; 17 Mass. (y) The statement of any one cause 389; Gay v. Paine, 6 Mow. Pr. P., of action should show how much is 107; Wallace ®. M'Connell, 13 Pet, claimed upon that cause of action. 136. See Form No. 61, note («), ante, 94. (r) See authorities to Form No. 77, (w) See Formal Parts of Pleadings, ante, 117. Form No. 1, ante, 16. PROMISSORY NOTES. 123 Act of Agent — how pleaded. 5. On a Note signed ly Attorney in Fact. No. 81. I. That on the day of 18S , the defendant [maker] by one M. N., his attorney in fact, duly authorized thereto, (x) made and delivered to the plaintiff his promissory note in writing, of which tbe following is a copy : \_Copy of the note and signature ly attorney.] II. That there is now due to this plaintiff thereon, from the defendant, the sum of dollars, with interest from, &c. Wherefore, &c. {x) The question often arises, whether an act done by an agent should be pleaded as the act of the principal, or whether the agency should be stated. Where, as in this case, the pleading must show by the copy of the instrument, that the act was by an agent, his authority should be averred. M'OuUough v. Moss, 5 Den. 567. In other cases the pleader has often his election to state the act in either way. See Form 107, note (j). It has been held, that in the com- mon counts it is not necessary to state that the defendants acted by an agent, but that an averment that the act was the act of the defendants would be supported by proof of the act of their agent : Monroe Qen. T., 1856, Sherman v The N. Y. Central Railroad Company ; 22 Barb., 239 ; and in Dolner v. Gibson, New TorTc Sp. T., 1850, 3 Code B., 158, the words in the complaint showing the agency by which the defendant acted were struck out on motion, as setting forth, not a pleadable fact, but mere evidence. In that case, however, the words considered objectionable did not simply aver, as would have been proper, that the plaintiff sold to the defendant by his agent duly au- thorized to purchase, but averred a sale to the agent setting forth the ev- idence from which his agency and the liability of the defendant as prin- cipal were to be inferred. In St. John V. Griffith {New Torh Sp. T., 1854, 1 AUotfs Pr. R, 39), a motion to strike out an averment that the defendant acted by his agent was denied, on the ground that it was a fact necessary to be stated. Ives V. Humphreys (New York Com- mon Fleas, Cen. T., 1851, 1 F. D. SmitVs R, 196) was an action of trespass, where two of the defendants actually committed the act, and a third defendant instigated and em- ployed them to do it ; and the statement of the fact in that form was deemed to be more proper than 124 COMPLAINTS. Mistake in date. Act of partners. 6. On a Note ■ Wrongly Bated, (y) No. 82. I. That on the first day of January, 1857, at the town of Jamaica the defendant made his promissory note in writing, bearing date by mistake on the first day of January, 1856, whereas in truth it was intended to bear date on said first day of January, 1857, and thereby promised to pay this plaintiff or his order dollars, days after said first day of January, 1857, for value received, and delivered it to this plaintiff. II. That said note has not been paid, nor any part thereof; but the defendant is now justly indebted to him thereon in the sum of dollars, with interest from, &c. 7. On a Note made ly Partners. No. 83. I. That on the day of j 185 , the defendants made, under their firm name (z) of Y. Z. & Co., (a) and deliv- ered to this plaintiff their promissory note in writing, of which the following is a copy : \_Gopy of the note.] would have been an averment that declaration contained no averment all of the defendants entered, &c. that the defendants were partners, or That it is the better practice to that they acted under the firm name state the fact that the defendant in making the note, hut it was aver- acted by an agent, see also 2 Chitt. red that they " made their note," &c., Fl, 117; 1 Wentw., 845; VoorMes' " their own proper hands and names Code, 5th ed. 199, note d. being thereto subscribed by the (y) See Form No. 78, note («), ante, name and description of John and 120, and 2 Chitt. Fl, 117. George Pease," it was hdd that proof (z) That this is a sufBcient aver- that one of the defendants signed the ment of the making of a partnership note with the firm signature was not note, see Wardell v. Pinney, 1 Wend, sufficient to prove the contract as 217; Vallett v. Parker, 6 II., 615; laid. Pease «. Morgan, 7 Johns. R, Mack «. Spencer, 4 lb. 411 ; Bass v. 468. Olive, 4 Campb. 78. But where the (a) See note (e), infra. PROMISSORY NOTES. 125 Partnership — wheo it should be averred. Dormant Partner. II. That there is now due to this plaintiff thereon, from the defendants, the sum of dollars, with interest from, &c. (b) Wherefore, &c. 8. On the Same; Another Form, averring Partnership of the Makers. No. 84. I. That at the time of the making of the note hereinafter mentioned the defendants were partners doing business under the firm name of T. Z. & Co. (c) ir. That on the day of 18 , the defend- ants ^jnakersl made under their said firm name of Y. Z. & Co., (d) and delivered to this plaintiff, their promissory note in writing, of which the following is a copy : {Cojpy of the note.] in. That there is now due to this plaintiff thereon, from the defendants, the sum of dollars, with interest from, &C. (e) Wherefore, &c. 9. £y Partners, (f ) on a Note payable to the Order of their Firm Name. No. 85. I. That on the day of 18 , the defendant \maker'] made and delivered to these plaintiffs under their (5) See notes and authorities to averred, it is sufficient to state that Form No. 11, ante, 111. the said firm made the note. The (c) Where the fact of a partnership Manhattan Company v. Ledyard, 1 is likely to be drawn in question, it Cat., 192. See note (z), supra. will sometimes be better to aver the (e) See notes and authorities to fact distinctly. See Oechs v. Cook, 3 Form No. 77, ante, 117. Duer 161. (/) Under the Code, a dormant (d) It has be'en held that where a partner is a necessary co-plaintiff, partnership between the makers is Secor «. Keller, 4 i)««r, 416. Other- 126 COMPLAINTS. Death of partner, and Burvivorship of plaintiff. firm name (g) of A. B. & Co., his promissory note in writing, of which the following is a copy : {Copy of the, note.] II. That there is now due to these plaintiffs thereon from the defendants, the sum of dollars, with interest, &c. (h) Wherefore, &c. 10, By a Surviving Partner (i), on a note Payable to the order of his Late Firm. No. 86. I. That, at the time of the making of the note hereinafter mentioned, this plaintiff and one 0. D. were partners, doing business under the firm-name of A. B. & Co. II. That on the day of 185 , the defendant made and delivered to them under their said firm- name of A. B. & Co., his promissory note in writing, of which the following is a copy. [Oopy of the note.] III. That on the day of 185 , at , said 0. D. died, leaving this plaintiff the sole surviving partner of said firm (j). IV. That there is now due to this plaintiff thereon, from the defendant, the sum of dollars, with interest, &c. (k) Wherefore, &c. wise before : Ibid. ; and Clark v. Mil- When a joint ownership or joint con- ler, 4 Wend. 628. And it would be tract will enable them to recover, it otherwise of a special partner under is no objection to their complaint the statute. 2 Eeo. Stat., 175, § 14. that their partnership is not pleaded. (g) The plaintiffs must show them- Loper v. Welch, 3 Duer, 644; and selves to be the persons composing see Oechs v. Cook, 3 ih., 161 ; and the firm. McGreggor ij. Cleveland, 5 see note (z), supra. Wend., 4:75; Ord «.. Portal, 3 Oamp., (h) See notes and authorities to 239, n. But see Wardell v. Pinney, Form No. 77, ante, 117. 1 Wend., 217. (j) The surviving partner may sue A distinct averment of the fact of in his own name on a debt contracted partnership between the plaintiffs, is with his firm before his copartner's only necessary when their right of ac- decease. Bernard v. Wilcox, 2 Johns. tion depends upon the partnership. Cas., 374, and cases there cited. PROMISSORY KOTKS. 127 Survivorship of defendant. Averment of incorporation. 11. By Payee against Surviving Maker. No. 87. I. That at the time of the making of the note hereinafter mentioned, the defendant and one "W". X. were partners doing business under the firm name of T. Z. & Co. II. That on the day of , 185 , they made under their said firm name, and delivered to this plaintiff their promissory note in writing, of which the following is a copy. [Copy of the note.] III. That on the day of 185 , at , said W. X. died, leaving the defendant the sole surviving partner of said firm. IV". [As in the preceding form.] 12. By a Manufacturing Corporation formed under the general act, Payees, against a Foreign Corporation, Makers. No. 88. I. That the plaintifis are a corporation created by and under the laws of this State, organized pursuant to an act of the legislature entitled " An Act to authorize the formation of Corporations for Manufacturing, Mining, Mechanical and Chemical purposes," passed February 17th, 1848, and the acts amending the same (1). II. That the defendants are a corporation (m) duly char- tered by and under the laws of the State of New Jersey, and (j) In an action by a surviving (h) See notes and authorities to partner, on a chose in action which Form No. 11, ante, 117. was of the partnership, the death of {I) This form of averment is sup- the deceased partner and the plain- ported by The New York Floating tiff's survivorship must be stated. Derrick Company v. The New Jersey Holmes v. D'Oamp, 1 Johns., 34 ; Jell Oil Company, 3 Duer, 684 ; The e. Douglass, 4 Barnw. & A., 374 ; Oswego & Syracuse Plank Road Co. S. C, 6 Eng. Com. L. R, 451. But v. Rust, 5 Mow. Pr. R., 390. And see otherwise if the note were origin- Averments of Incorporations, Forms ally made to or the account stated by 20 to 24, inclusive, and notes, ante, 41. the survivor, although the consider- {m) If the defendants are a corpo- ationprocaeded from the partnership, ration, it should be so alleged in the lb. ; S. P., White «. Joy, 3 Kern., 83. complaint. Mechanics' Banking As- 128 COMPLAINTS. Note made by corporation — ^how pleaded. pursuant to an act of the legislature of said State entitled' [title of the act} passed [date of passage"] (n). III. And the plaintiffs further state, on information and belief, that on the day of 185 , the defendants being such corporation, by their agent duly authorized thereto (o), made and delivered (p) to these plaintiffs (q) their promissory note in writing, of which the following is a copy. sociation v. The Spring Valley Shot and Lead Company, 13 How. Pr. R., 227 ; but see, contra, Stoddard u On- ondaga Annual Conf., 12 Barb., 573. (re) This form of averment is sup- ported by the Mutual Benefit Life Insurance Company v. Davis, 2 Kern. 569 ; The New York Floating Der- rick Company v. The New Jersey Oil Company, 3 Duer, 648. And see Averments of Incorporation, ante, 41. (o) See Form No. 81, note (a:), ante. Q?) In the absence of any prohibit- ory statute, a corporation may give a note for a debt contracted in the course of its legitimate business, although not specially authorized by statute to make promissory notes. Mott v. Hicks, 1 Cow. 513 ; and see page 532, and cases there cited. Moss v. Oakley, 2 Hill, 265 ; Attorney Gen- eral v. The Life and Fire Insurance Company, 9 Paige, 470 ; Kelly v. Mayor of Brooklyn, 4 Hill, 263 ; M'OuUough V. Moss, 5 Ben. 567. And where there is nothing on the face of the note to show that it was issued contrary to law, or to raise a suspicion that the consideration or the purpose was illegal, the presump- tion is that it was given for a lawful purpose. Safford ■». Wyckoff, 4 Hill, 442 ; Barker v. The Mechanics' Insu- rance Company, 3 Wend., 94 ; 6 ib. 615 ; 1 Rev. Slat, 768, § 3. It was said in The Mechanics' Banking As- sociation ®. The Spring Valley Shot and Lead Company {N. Y. ^. T., 1856, 13 How. Pr. R., 227), that it must be further alleged that the note was transferred in the ordinary course of business. But by the weight of authorities as well as by general principles, the making of the note having been proved, the pre- sumption would be in favor of its validity and the burden of proof would be on the defendant, to show the contrary (in the cases above cited.) The power of the corpora- tion being general, if the defendant's case is an exception, it rests with them to plead the fact. It is more- over a fact which lies more particu- larly within their knowledge. And it is settled in the N. Y. Superior Court that a complaint in the above form is sufficient. New York Float- ing Derrick Company v. The New Jersey Oil Company, 3 Duer, 648. If the pleader desires, he may insert the words " to these plaintiifs in the course of the legitimate business of said defendants, as by law they had power to do, their promissory note," &c. {q) Prima facie, a corporation has PROMISSOKT NOTES. 129 By Corporation, payees. By a Receiver, payee. "(^FFicE New Jersey Oil Co., i New York, Jult/ 29th, 185S. \ Dollars 377//^. Ninety days after date the New Jersey Oil Co. promise to pay to the order of the New York Floating Derrick Co. three hundred and seventy seven JJl dollars, value received. O. Holmes, President, E. F. Jenkins, Treasurer. IV. That there is now due to these plaintiffs thereon, from the defendants, the sum of three hundred and spventy- seven dollars and seventy-five cents, with interest from, &c. (r). Wherefore, &c. 11. B^ a Heceiver, Payee, against Partners, Mahers. No. 89. SUPEEME COURT, County of Andrew White, Receiver of the Canal Bank, Plaintiff, against Miles Joy and Lewis Joy, Defend- ants. J The complaint of the plaintiff, as receiver of the Canal Bank (s), shows to this court : I. That on, &c., the defendants made and delivered to this power to take a promissory note. (s) This is a sufficient averment The Mutual Benefit Life Insurance that the plaintiff sues in his capacity Company v. Davis, 2 Kern., 569. as receiver. Smith v. Levinus, 4 {r) See notes and authorities to Seld., 472. But compare Gould v. Form No. 77, ante, 117. Glass, 19 Bari., 179. Where, as in 9 130 COMPLAINTS. Receiver, payee, against Maker. plaintiff, as such receiver, (t) their joint promissory note in writing, dated on that day, and thereby promised to pay the plaintiff as such receiver, in one year from said date, the sum of one thousand dollars for value received. II. That the same has not been paid, or any part thereof, (n) [except, &c.] and the defendant is now justly indebted to him, as such receiver, in the sum of dollars, with interest from, &c. Wherefore, &c. This form is supported by White v. Joy, 3 Kern., 83 ; and cases cited under form No. 78, ante, 1 19. this case, the note was never held by the corporation, but was originally executed to the receiver, or was in- dorsed to him, his complaint upon it need not show the manner of his ap- pointment, although that would be necessary if he derived his title to the instrument by the appointment. White V. Joy, 3 Kern., 83. See, also, Merritt J). Seaman, 2 Seld , 168; where it is held that an executor can maintain a suit either in his own name or as executor upon a note given to him as executor for a debt due to the testator at the time of his decease. Where he can deduce his title through an indorsement, he may sue in his individual capacity. Hax- tun ». Bishop, 3 Wend. 1 ; and see Form No. 26, note ( j), ante, 47. (t) The act should be averred as that of the party as such receiver, &c. Merritt v. Seaman, 2 Seld., 168, and cases there cited. This clause was contained in the complaint in Smith V. Levinus, 4 Seld., 472 ; and see Gould a. Glass, 19 Barl. 179 ; Shel- don V. Hoy, 11 Eow. Pr. R 11. It has been held, however, that where the plaintiffs character is once sufB- ciently stated, the word plaintiff in subsequent parts of the pleading re- quires no addition of the description. Stanley v. Chappell, 8 Cow. 285. And when a promise was laid as made " by A, administrator as afore- said," instead of "by A, oa adminis- trator aforesaid," the defect was held waived after verdict. Carter v. Phelps, 8 Johns., 440. (u) In this Form the note is pleaded according to its legal effect. For authorities see Form I>'o. 78, ante. In such case the complaint must allege non-payment. Keteltas V. Uyers, 1 Abbotts' Fr. £, 4:03. It will generally be found more conven- ient, in actions against the maker, to pursue the form authorized by sec- tion 162 ; but see Form No. 77, note (u), ante, 117. PROMISSORY NOTES. 131 Suits by Associations under acts of 1849 and 1851. 12. By the Treasurer of an Unincorporated Corrvpany^ on a Ifote payable to the former Treasurer of the Company. No. 90. SUPREME COURT, County of Heitey Tibbit-js, Treasurer of the Forrestville Division No. 411, Sons cif Temperance, Plaintiff, against John Blood and James Tubes, De- fendants. The complaint of the plaintiff shows to this court : I. That the Forrestville Division No. 411, Sons of Temper- ance, is an association (v) consisting of seven persons and up- wards, in the town of Hanover, in this State, (w) II. That at the time hereinafter mentioned, one Charles Brown was the treasurer thereof. («) The act of 1849 (XaMso/1849, ch. 258, 2 Rev. Stat, 4th ed., 717, quoted ante, 46, note (g) ), was by act of 1851 extended to include any company or association composed of not less than seven persons who are Owners of or have a joint interest in any property, right of action, or de- mand, jointly or in common. Laws 0/1851, ch. 455. It is only in cases where an asso- ciation, as such, are the owners, or have an interest, joint or in common, in any property, right of action, or demand, that a suit may be main- tained in the name of the association. Several individual demands accruing to all the members are not to be re- covered in such an action. Corning «. Greene, 23 Barl. 33. In an action by the foreman of one of the fire companies of the city of New York against the foreman of another to re- cover possession of a fire engine, it was held that an association can not sue under this act, respecting prop- erty which they hold as agents merely, and not as owners. Master- ton v. Botts, 4 AUotts' Pr. R, 130. (m) See Averments of Capacity, &c.. Form Wo. 25, ante, 46. i32 COMPLAINTS. TreaBurer of Association against maker. III. That on the 2d day of January, 1852, the defendants made their promissory note in writing, of which the following is a copy : (x) " Nine months after date we jointly and severally promise to pay Charles Brown or bearer, fifty dollars and interest every three months for value received. \Makeri signatures?^ " Jan. 2d, 1842." and thereupon delivered the same to said Brown the treasurer of the association, who was duly authorized to receive it on their behalf, (y) IV. That said note was given for the benefit of the associa- tion, and that it is the property of the members thereof, and owned by them in common. V. That this plaintifi" is now the treasurer of said associa- tion, and, as such, is the lawful holder of said note on and for their behalf, (z) VI. That the same has not been paid, nor any part thereof [except, &C.J and there is now due to this plaintiflT, as such treasurer thereon, from the defendants, the sum of dollars, with interest from, &c. Wherefore, &c. This form is supported by Tibbetts, Treasurer, &c. v. Blood, 21 Barb. 650. (») For authorities as to the aver- (z) As to what will sufficiently ment of the making of the note, see show that the company, and not the Form No. 77, ante, 117. officer, is the party in interest, see (y) See, as to averment of agent's The Camden Bank «. Rodgers, 2 Code authority, ^ormJ/o. 81, wo., 33. And see Spellman e. (T)SesnotestoFormsNbs.83a,nd8i. "Weider, 5 Sow. Pr. R, 5. But it (m) See notes to i^orm iVo. 91. seems that maker and indorser can- (ra) See notes to Form, No. 92. not be joined in an action by an in- (o) See notes and authorities to dorser who has paid a part of a note, Form No. 94. to recover for money paid, &c. See (p) See notes and authorities to Form No. 37, note (»), ante, 61. Nor Fwm No. 77. can the assignee of non-negotiable {q) See notes to i^orm i^o. 92,^ar- paper join maker and assignor in agraph I., ante. Where a note was one action. White v. Low, 7 Bari., drawn to the order of the payee, was PROMISSORY NOTES. 145 Indorsee against maker and indoraers. in ■writing, of whicli the following is a copy: \Cojpy of the note /] and delivered it to the defendants \jpayees\ [therein named as payees under their firm name of W. Y. & Co.] II. That the defendants \^fayees\ [under their said firm name] indorsed the same and delivered it so indorsed, (r) III. That thereafter the defendants \lateT indorsers] [under their firm name of U. Y. & Co.] indorsed the same and deliv- ered it so indorsed, and thereafter and before its maturity, it lawfully came to the possession of the plaintiff for v^lue. (s) lY. This plaintiff further states [upon information and belief,] that at maturity said note was duly presented for pay- ment, but was not paid, of which the defendants [indorsers] had due notice, (t) Y. That this plaintiff is now the lawful owner and holder' of said note, and there is due to him thereon from the defend- ants the sum of dollars with interest from, &c. (u) Wherefore, &c. transferred by him to the plaintiff by assignment and without indorsement, it was held on demurrer to the com- plaint upon the note, that it was not necessary, to enable the plaintiff to maintain an action (against a party who indorsed the note prior to its transfer to the plaintiff), that the payee should indorse the note. The rule that a bill or note payable to order must be transferred by indorse- ment applied only to make the instru- ment negotiable, so that the holder might sue in his own name. But the transfer by delivery was sufficient to enable the holder to sue in the name 10 of the payee. By the assignment of the note alleged, the plaintiff acquired title to the note, and the action, un- der the Code, could be maintained in his own name. N. Y. Com. Pleas, 1856, Savage v. Bevier, 12 Eow. Pr. R, 166. See Code, § 111 ; Hastings V. M'Kinley, 1 E. D. Smith's C. P. B., 273. (r) See notes and authorities to Forms Nos. 77 and 92, ante. (s) See note (Ji), ante, 185. (t) See notes to Form No. 94, par- agraph III., ante, 138. (m) See notes to Form No. 92, par- agraph III., ante, 136. Ii6 COMPLAINTS. Action by Payee against Indorser. 3. Indorsee against Maker and Indorser on a Note payable on Demand. No. 100. I. That on the day of j 185 , the defend- ant \maker'] made his promissory note in writing, of which the following is a copy : \_Copy of the note j"] and delivered the same to the defendant \indorser'\ the payee therein named, who then and there indorsed the same to tbis plaintiff, (v) II. That payment of said note was duly demanded(w) from the defendant \malcer'] but the same was not paid, of which ■ the defendant [ifidorser] had due notice, (x) III. That there is now due to this plaintiff thereon from the defendants the sum of dollars with interest from, &c. (y) Wherefore, &c. V. Payee against Maker and Indorsee, (z) Payee halving Parted with full Value on the Faith of the In- dorsement. No. 101. I. That on the 9th day of September, 1851, at the city of Brooklyn, the defendant Anthony McGervey made his promissory note in writing dated on that day, and thereby (p) See notes and authorities to due demand is sufficient. See Form paragraph I. oiFormNo.77, ante, 117, No. 94, note (t), ante, 138. and paragraph I. of Form No. 91, (x) See notes to paragraph III. of ante, 183. Form No. 94, ante. {w) Formerly it was requisite in (y) See notes to paragraph II. of BQch a complaint to state the day of Form No. 77, ante, 117. the demand, that the court might see (s) It is not yet settled,, whether it was made within a reasonable time ; one who writes his name.oti the back but under section 162 an averment of of a negotiable promissory note drawn PROMISSORY NOTES. ur Whether the Payee may recover against an Indorser. to the payee's order, before the payee indorses it, can in any case be held liable to the payee as an indorser. See the cases in this State on this question collected and discussed by Mr. Justice Woodruff, in Hahn v. Hull, 2 Abbotts'' Pr. R, 852 ; and see Durham ■». Manrow, 2 Comst., 633 ; Hall «. Farnum, 2 ib., 553 ; Josselyn V Ames, 3 Mass., 274 ; Griswold i). Slocum, 10 Barb., 402 ; Bradford d. Martin, 3 Sand/, 647 ; Pierson v. Boyd, 2 Duer, 33 ; Oottrellt). Conklin, 4 ib., 45 ; Murphy v. Merchant, 14 How. Pr. P., 189; Moore v. Cross, 23 Barb., 584. The last named case is now before the Court of Appeals. Morris v. Walker (15 Q. B., 589, decided in 1850), was a case of this nature. The declaration, by 0. M. stated that B. made his promissory note for 23Z., payable "to the order of 0. M." three months after date, and delivered it to "the said 0. M.," and the said 0. M. indorsed to the defend- ant, and the defendant indorsed to the plaintiff; it stated also dishonor and notice. Plea, That 0. M., stated in the declaration to have indorsed to the defendant, and 0. M. the plaintiff, are one and the same person. Replica- tion, That before the indorsement, &c., B was indebted to plaintiff in 23Z., and it was agreed between plaintiff and B, at B's request, he being unable to pay, that he should give plaintiff, who would accept and take on account of such debt B's note for 23 Z. payable at three months, which time plaintiff should give for payment provided B would procure the defendant to in- dorse the note for the purpose of securing payment and by way of guarantee; of which premises the defendant had notice and assented and agreed thereto ; and that there- upon in pursuance of the agreement, B made and delivered the note to the plaintiff on account, &c., and the plaintiff, in furtherance of the agree- ment and not otherwise, and without any consideration or value in that behalf, indorsed to the defendant as in the declaration mentioned in order that the defendant mightin pursuance and furtherance of the agreement in- dorse the same to the plaintiff; and that the defendant accordingly, in pursuance of the agreement and for the purpose aforesaid and not other- wise, indorsed the same to the plaintiff, which is the indorsement to him in the declaration mentioned; and it was held on demurrer, that this replication was no departure, and was an answer to the plea ; and the plaintiff had judgment. • The objection to the payee's recov- ery in such case, is founded on the rule that forbids the admission of parol evidence to modify or contradict a written contract. There are two cases in which he can recover, unless this rule is held to interpose : First, where the payee parted with value oti the faith of such an indorsement made for the purpose. (SsconcZ, where the indorsee received value from the payee, or in other words was privy to the consideration of the note.. Upon either state of facts, if proof is admissible the payee might recover. It is held in the Fifth District, (Ellis V. Brown, 6 Barb., 282,) that it is not. The same opinion is intimated in the New York Superior Court 148 COMPLAINTS. Special averment of Consideration for indorsement. promised to pay to the order of this plaintiff, at the Atlan- tic Bank, the sum of five hundred dollars, four months after the date thereof, for value received, and delivered the same to this plaintiff, (a) II. That the defendant John A. Cross indorsed said note, when said McGervey delivered the same to this plaintiff. III. This plaintiff further states on information and belief, that said note at maturity was duly presented for payment, but was not paid, of which the defendant John A, Cross had due notice, (b) lY. This plaintiff further states that said note was made by the defendant McGervey, and indorsed by the defendant Cross, for the purpose of paying for coal sold and delivered by this plaintiff to the defendant McGervey on the credit of such. indorsement ; that the defendant Cross indorsed the same for the purpose of procuring for the said maker a credit with the plaintiff, knowing that it would be so applied, and that said note was so passed and so indorsed by the defendant Cross with his privity to the plaintiff, in payment for coal then sold and delivered, (c) Y. [As paragrajph III. in Form No. 100.] (Murphy v. Merchant, 14 How. Pr. If a note drawn payable to learer £., 189) ; and in the New York Com- is so indorsed, the indorser is liable to mon Pleas (Hahn v. Hull, 2 Abiotts' the payee as to an indorsee. Dean Fr. R, 352.) On the contrary, in «. Hall, 17 Wend., 214 ; Seabury v. the First District (General Term) it Hungerford, 2 Hill, 80. is held that such proof may be (a) See notes to paragraph I. of received. Moore v. Cross, 23 Barb., Form No. 18, ante, 119. 534. The above form is sustainable (J) See notes to paragraph III. of only upon the latter view. Form No. 94, ante, 138. It has been suggested that the (c) This is the complaint in Moore payee was entitled to indorse " with- v. Cross, 23 Barb., 534, modified out recourse" above the indorser's slightly to conform to the previous name, and then sue as a subsequent precedents, and so as to state only indorsee. Hall v. Newcomb, 7 Hill, one note instead of two as in that 416; Moore D.Cross, 23 5ar J., 534. case. The allegations contained in BILLS OF EXCHANGE.. 149 Analysis of Section VIIL SECTION VIII. Complaints on Bills of Exchange. I. — Payee against Acceptok. 1. Common form. 2. Shorter form, selling out a copy of tlie bill. 3. On an acceptance varying as to time from the bill. 4. Against acceptor for honor. 5. On a bill directed by the drawer to himself and accepted by him. II. Payee against Deawee. 1. On a bill payable at a certain time after date or sight, — for non-acceptance. 2. On the same, another form, setting out a copy of^the bill. 3. On a bill payable on a day ceitain, or at a certain time after date,— for non-payment. 4. On a bill payable at a ceitain time after date or sight, — for non-payment after acceptance. f). On the same, non-presentment for acceptance excused, the drawer having counteimanded the bill. 6. On the same, non-presentment for acceptance excused because the drawee could not be found. paragraph marked IV. were inserted the complaint is insufficient in this as an amendment respect if it merely aver that the note, Theplaintiflfinsuchacasecertainly for a further inducement to the cannot recover unless his complaint plaintiff to accept the same, was in- contain special averments showing dorsed by the defendant and was the facts relative to the transaction then delivered to and indorsed by the that may operate to charge the in- plaintiff. Murphy v. Merchant, 14 dorser in the payee's favor, (Brad- Em. Pr. E., 189. ford V. Martin, 3 Sand/., 647;) and 150 COMPLAINTS. Analysis of Section VIII. concluded. Payee against Acceptor. III. — Patee against Drawer and Acceptoe. 1. On a bill accepted by the drawee. 2. On a bill accepted for honor. lY. — Bt Indorsee. 1. Against drawer and indorser, — for non-acceptance. 2. Against drawer, indorser before acceptance, and acceptor, — for non-payment. 3. Against drawer, acceptor, and indorser after acceptance, — for non-payment. Y. Drawer against Acceptor. 1. On a bill returned to, and taken up by the drawer. 2. On a bill payable to the drawer's own order and not nego- tiated. I. Payee against Acceptor. 1. Common Form. No. 102. I. That on the day of 185 , at , one M. N. [t>?', certain persons under their firm name of M. N. & Co. (d)] made his [or, their] bill of exchange in writing, dated on that daj', directed to the defendant, [or, to the defend- ants under their firm name of Y. Z. & Co.,] and thereby required the defendants to pay to the order of this plaintiff \or, of these plaintiffs under their firm name of A. B. & Co.] the sum of dollars days [or, weeks, or, months,] after date \oi\ sight] thereof, for value received ; and delivered the same to this plaintiff, (e) (3) It is not necessary to describe ie) In an action on a draft, brought the drawers more definitely than this by the Camden Bank against the where they are not joined as defend- drawer, after showing that the draft ants. See Form No. 93, note (/), was made payable " to the order of ante, 134. W. B. Storm, cashier," an averment BILLS OF EXCHANGE. 151 Averment of acceptance. Breach. Damages. II. That thereupon [or, on the day of 185 , at ,] the defendant [or, the defendants undei- said firm name] upon sight thereof accepted said bill, (f) III. That the same has not been paid (g) nor any part thereof, [except, &c.,] and the defendant is now justly indebted to this plaintiff thereon in the sum of dollars, with [damages (h) and] interest. Wherefore, &c. 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," sufficiently shows that the bank and not S is the real party in interest. The Camden Bank ». Kodgers, 4 R), post. Form No. 102, supra. BILLS OF EXCHANGE. 153 Avermeiit3 to charge acceptor for honor. & Co.] made his [or, their] bill of exchange in writing, dated on that day, and directed the same to one O. P. [or, certain persons under their firm name of, &c.J and thereby required said O. P. to pay to the order of this plaintiff [or, of these plaintiffs under their firm name of A. B. & Co.] the sum of dollars days [or, weeks, or, months] after date [or, sight] thereof, for value received ; and delivered the same to this plaintiff. (1) II. That then and there [or, on the day of 185 , at ,] it was duly presented to said O. P. for acceptance, but was not accepted, [(/" a foreign bill add, and was thereiipon duly protested for non-acceptance] of which said drawer had due notice, (m) III. That then and there [or, on the day of 185 , 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]. TV. That at maturity the same was duly presented for payment to said O. P. [the drawee], but was not paid, [if a foreign hill add, and was thereupon duly protested for non- payment], of which the defendant [accejptor for honor], and said M. N. [drawer] had due notice, (n) Y. That the same has not been paid nor any part thereof, and the defendant is now justly indebted to this plaintiff thereon in the snm of dollars, with [damages (o) and] interest from, ■) See Form No. 40, not* (J), Code. ante, 64. 166 COMPLAINTS. By Drawer, on an acceptance not negotiated. sum of dollars, being the amount of said bill with dam- ages [or, with costs of protest] and interest, (s) *rhat the plaintiff is now the lawful owner and holder of said bill, and that the same has not been paid nor any part thereof; and the defendant is now justly indebted to him' thereon in the sum of, &c. "Wherefore, &c. 2. On, a Bill Payable to the Drawer's own Order, a/nd not Negotiated. No. 119. I. That on the day of j 18 , at , this plaintiff made his [or, these plaintiffs under their firm name of A. B. & Co. made their] bill of exchange in writing, dated on that day, and directed it to the defendant [or, to the defendants under their firm name of, &c.J and thereby required the defendant to pay to the order of this plaintiff dollars days [or, weeks, or, months] after date [or, sight] thereof ; and the defendant thereupon [or, on the day of , 185 , at ,J upon sight thereof accepted said bill, for value received, and delivered it to the plaintiff. II. That the plaintiff is still the lawfiil owner and holder of said bill, and that the same has not been paid, nor any part thereof [except, &c.] ; and the defendant is now justly in- debted to him thereon in the sum of dollars with [dam- ages (t) and] interest. "Wherefore, &c. (s) This action may be maintained taken up the bill, he should sue, without deducing title to the bill not on the bill, but for money paid, through the payee. Kingman v. &c. See Form No. 37, note (x)y Houghtaling, 25 Wend., 425, and ante, 61. cases there cited. If the drawer has (i) See note (e), supra. only paid a part so that he has not CHECKS. 167 Analysis of Section IX. Against drawer of check. SECTION IX, Complaints upon Checks. I. — Against Drawee. 1. Payee against drawer. 2. Indorsee, or bearer, against drawer. 3. Payee against drawer ; omission to give notice of non- payment excused because the drawer had no funds. 4. Indorsee against drawer ; non -presentment excused because of insolvency of the drawee. II. — Indorsee, oe Beaeee, against Drawee and Indoesee. Ill- — Against the Bank, Deawee, having ceetified. I. Against Deawer. 1. Payee against Drawer. No. 120. I. That on the day of 185 , at , the defendant made his check [or, the defendants under their firm name of Y. Z. & Co. (u) made their check] in writing dated on that day, and directed the same to the Bank of M. ]Sr. \or, to certain persons under the firm name of, &c.J, and thereby required said \drawee\ to pay to this plaintiff" or order \or, bearer (v)] dollars (w) for value received ; and delivered it to this plaintiff. (■u) See Jbrm ITb.SS, note{z), ante, "to the order of bills payable," (Wil- 124 ; and No. 84, notes (e) and (d), lets v. The Phenix Bank, 2 Buer, ante, 125. 121,) is to be deemed payable to (v) A check payable to the order bearer if negotiated by the maker, of a fictitious person, e. g., to the See note (z), infra. order of a firm long since dissolved (w) When no time of payment is (Stevens v. Strang, 2 Sand/., 138), or mentioned the check or note is pay- 168 COMPLAINTS. Against drawer of cheek. II. That the same was duly presented () to the said [drawee] for payment, but was not paid of which the defend- ant [drawer] had due notice, (y) and he is now justly indebted to this plaintiif thereon in the sum of dollars with ■interest from, &c. Wherefore, &c. able immediately, and it is unneces- sary that the complaint should state a time as the time of payment. Her- rick V. Bennett, 8 Johns., 374 ; Pear- sall V. Frazer, 14 Bari., 564; and see Thompson v. Ketcham, 8 JoTins., 146. By a recent statute of this State it is provided as follows: All checks, bills of exchange, or drafts, appear- ing on their face to have been drawn upon any bank or upon any banking association or individual banker, car- rying on banking business under the act to authorize the business of bank- ing, which are on their face payable on any specified day or in any number of days after the date or sight thereof, shall be deemed due and payable on the day mentioned for the payment of the same, without any days of grace being allowed, and it shall not be necessary to protest the same for non-acceptance. 1 Laws 0/1857,838,0^.416, §2. (x) As against the drawer, pre- sentment at any time before suit brought is sufficient, unless it appear that he has been prejudiced by un- reasonable delay on the part of the holder. Little d. Phenix Bank, 2 Sill, 425, and cases there cited ; S. C, 7 Bill, 359 ; Harbeck v. Craft, 4 Duer, 122. (y) In general, presentment and notice of non-payment is necessary to charge the drg,wer of a check. Harber v. Anderson, 21 Wend., 372 ; Shultz «. Depuy, 3 Abbotts' Pr. S., 252; and see Franklin v. Vanderpool, 1 Hall, 78. But compare Oruger «. Armstrong, 3 Johns. Oas., 5 ; Oonroy D. Warren, 3 ib., 269 ; Elting v. Brin- kerhoflf, 2 Hall, 459. It is otherwise if the drawees have failed, or their business been stopped by an injunc- tion, 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-payment. See Forms 122 and 123. For authorities as to the form of this a.verment see notes to paragraph III. of Form M. 94, ante, 188. CHECKS. 169 Cheek payable to fictitious person. OmiBsion of notice 2. Indorsee, or Bearer, against Drawer. No. 121. I. That on the day of 185 , at , the defendant made his check [or, the defendants, under their firm name of, &c., made their check] in writing, dated on that day and directed the same to the Bank of M. N. [or, to certain persons, &c.J, and thereby required said [drawee'] to pay to one O. P. or order [or, bearer] dollars, for Value received ; and delivered it to said [payee] [if payable to order add, who indorsed the same, and delivered it so indorsed], (z) and the same thereafter came lawfully to the possession of this plaintiff, (a) II. That thereafter the same was duly presented to said [dra,wee'\ for payment, but was not paid, of which the defend- ant had due notice, (b) in. That this plaintiff is now the lawful owner and holder of the same, and the defendant is now justly indebted to him thereon in the sum of dollars, with interest from, &c. 3. Payee against Drawer ; Omission 'to give notice of Non- Payment Excused hecause the Drawer had no Funds. No. 122. I. [State the mahing and delivery of the cheek as in fara- graj>h I. of Form No. 120.] (z) If payable to bearer or to a upon the defendant negotiated the fictitious person, instead of stating same." that it was payable to 0. P., &c., say (a) See notes to paragraph I. of "and thereby required said [drawee] Form No. 92, ante, 134. to pay to the bearer thereof (6) See notes and authorities to dollars, for value received ; and there- * paragraph III. of Form No. 94, ante, 138. no COMPLAINTS. Exensea for omission of presentment or notice. II. That thereafter the same was duly presented (c) to said [drawee] for payment, but the defendant had no funds (d) with said [drawee'] and the same waj not paid ; and the defendant is now justly indebted to this plaintiff thereon in the sum of dollars, with interest from, &c. Wherefore, &c. Indorsee against Drawer ; Non-Presentment Excused- because of insolvency of the Drawee. No. 123. I. That on the day of 185 , at the defendant made his check [or, the defendants, under their firm name, &c., made their check] in writing, dated on that day and directed the same to the Bank of M. N. [or, to certain persons, under, &c.j, and thereby required said [drawee] to pay to the order of one O. P. dollars, for value received; and delivered the same to said [payee], who there- upon indorsed it to this plaintiff. II. That on the " day of 185 , (e) said (c) See Form No. 94, note («), ante, 139. Want of funds in the drawee's hands excuses the omission to give notice of non-payment. As to whether it excuses non-present- ment, see Cruger v. Armstrong, 3 Johns. Cas., 5 ; Fitch v. Redding, 4 Sand/., 130; Conroy v. Warren, 3 Johns. CiM., 259 ; Franklin v. Vander- pool, 1 Ball, 78 ; Schultz v. Depuy, 3 AUotts' Pr. S., 252. (d) In all cases where it is intended to rely upon want of funds as excus- ing demand or notice, that fact must be averred. Schultz v. Depuy, 3 Abbotts' Pr. Ji., 252 ; Garvey v. Fow- ler, 4: Sand/., 665; Fitch v. Redding,' 4JJ., 130; foanklin 1). Vanderpool, 1 JIall, 78. And generally evidence in excuse for non-performance is not admissible under an averment of performance. See Form No. 76, note («), ante, 113. («) The time should be stated, that CHECKS. 171 Insolvency of Drawee. Indorsement. [drawee] was insolvent [or, had stopped payment](f ), and said check has not been paid, nor any part thereof; and the defend- ant is now justly indebted to this plaintiff thereon in the sxim of dollars, with interest from, &c. (g) Wherefore, &c. II. Indorsee, ok Beaker, AaiiNsx Drawee and Indoesek. No. 124. I. That on the day of 185 , at , the defendant [drawer] made his check [or, the defendants, under their firm name of, &c., made their check] in writing, dated on that day, and directed the same to the Bank of M. IsT. [or, to certain persons, under, &c.], and thereby^ required said [drawee] to pay to the defendant [indorser], or order [or, bearer] dollars, for value received ; and delivered it to the defendant [indorser], (h) II. That thereupon said defendant [indorser, or, the defend- ants, indorsers, under their firm name of, &c.] indorsed the same to this plaintiff [or, indorsed the same and delivered it so indorsed ; and thereafter it came lawfully into the posses- sion of this plaintiff, for value, (i)] it may appear whether it was such as [or, bearer] dollars, for to excuse the holder from a demand, value received, and delivered it to Seel Chit. PI, 1%^. said 0. P. [who thereupon indorsed the (/) As against drawer these facts same and delivered it so indorsed]." dispense with presentment and notice. These last words are necessary if the Lovett V. Cornwell, 6 Wend., 369. check was payable to order. When ((?) See notes and authorities to payable to order of a fictitious per- paragraph II. of Form No. 78, antt, son, state negotiation by maker as in 120. note (z), supra. (A) If the indorser was not the («) See notes to paragraph I. of payee, substitute " to pay to one 0. P. Form No. 92, ante, 134. [or, to certain persons, &o.] or order 172 COMPLAINTS. Upon a certified check. in. That said check was duly presented for payment, but was not paid, of which the defendants had due notice, (j) IV. That [this plaintiff is now the lawful owner and holder of said check, and (k)] the defendant is now justly indebted to him thereon in the siim of dollars, with interest from, &c. Wherefore, &c. III. Against the Bank, Drawee, having Certified. No. 125. I. That the defendants are a corporation, created by and imder the laws of this State, organized pursuant to an act of the Legislature entitled " An Act to authorize the business of Banking" [o)', if the Bank was organized under a special charter, state title of its charter'], passed April 18, 1838 [or, date of special charter], and the acts amending the same. (I) II. That on the day of 185 , 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, and directed it to the defendants, and thereby required them to pay to this plaintiff or order [or, bearer] dollars, for value received ; and delivered the same to this plaintiff [or, if payable to a third party, state it as in preceding forrrh\. (J) See notes and authorities to as direct to the plaintiff the words in paragraph III. of Form Ifo. 94. Pro- bracket may be omitted. See Form test is unnecessary. li., note (v), No. 115, note (d), ante, 162. ante, 189; and see Form No. 120, (J) See notes and authorities to note (w), ante, 167. Form No. 22, ante, 43, and Form No. (K) If the indorsement was stated 88, ante, 127. NON-NEGOTIABLE INSTRUMENTS. 173 Analysis of Section X. III. That then and there, [or on the day of 185 , at ,J the defendants, by their agent duly authorized thereto, (m) in writing accepted and certified the same to be good. IV. That thereafter the same was duly presented for pay- ment, but was not paid; and the defendants are now justly indebted to this plaintiff thereon in the sum of dollars, with interest from, &c. Wherefore, &c. SECTION X. Complaints on non-negotiable instruments for the ^payment of money, (n) I. — Account Stated. II. — Non-Negotiable Notes and Bills. 1. On a note payable in case the proceeds of the maker's busi- ness exceed a certain sum. 2. On a note payable in chattels. 3. By indorsee of a bill of exchange payable out of proceeds of sales. III. — Stock Subsceiptions. 1. By a Plankroad Company organized under the general act, to recover subscriptions to its stock. 2. By a Railroad Company, for the same. IV. — Insurance. 1 . By the assured, on a Fire Policy, renewed. 2. By the assignee of the assured, on an agreement to insure, but the policy never having been delivered. . (m) See, as to the form and the The Butchers and Drovers' Bank, 4 sufficiency of this averment, Form Butr, 219, affirmed in the Court of No. 88, note (p), ante, 128. As to Appeals, but not yet reported, the authority of the cashier or paying («) For complaints in actions on teller to certify, see Willetts v. The contracts for services, see Forms No. Phoenix Bank, 2 Buer, 121 ; The 75 and No. 76, ante, 110. Fanners' Bank of Kent County v. 174 COMPLAINTS. Analysis of Section X. concluded. 3. By the assignee in trust for the wife of the assured, on a Life Policy. 4. On a Marine Policy. V. GiTAEANTIES. 1 . For payment of rent. 2. On agreement to be answerable for price of goods sold to third party. 3. On a guaranty of a precedent debt. VI. — Awards. VII. — Statutoby Undertakings. 1. On an undertaking for costs by non-resident plaintiff. 2. On the same for costs and damages on an attachment. 3. On the same on an arrest. 4. On an undertaking for the return of the property, &c. in an action of claim and delivery. 5. On a bond given to obtain discharge of an attachment. 6. On an undertaking for costs of appeal. VIII.— Bonds. 1. On a Money Bond. 2. On a Bond given to secure a stay of proceedings; for reformation of a mistake in it, and judgment upon it as reformed. 3. On a Bond for rent, against principal and sureties. 4. On a Bond for the faithful accounting of an agent. I. Account Stated. No. 126. I. Tiiat on the day of 185 , at , an account was stated between this plaintiif and the defendant ; and upon such statement a balance of dollars, was found to be due from said defendant to this plaintiff. II. That the defendant then and there promised to pay said sum ; but the same has not been paid nor any part thereof [except, &C.J, and the defendant is now justly indebted to this ];ilaintiff thereon in the sum of dollars, with interest from said, ), ante, 90. (x) The assignee of a life policy in trust for the wife of the assured, may, upon the death of the latter, sue in his own name as trustee of an express trust for the sum insured. Neither the wife nor the personal representatives of the assured are necessary parties. St. John i). The American Mutual Life Insurance Company, 2 Buer, 419. If the action is by an executor or administrator, omit this paragraph and insert after the averment of the death of the as- sured an averment of the plaintiff's character as executor or administra- tor, for which see Forms No. 27 and 28, anU, 48. (2/) See Form No. 68, note (p), ante, 90. NON-NEGOTIABLE INSTRUMENTS. 193 Death. Fulfillment of conditions precedent. Marine Insurance. Y. That on the day of' 185 , at , said M. N. died, which death was not caused by [the causes excepted in the policy], (z) YI. That said M. N. and this plaintiff each duly fulfilled all the conditions of said policy of insurance on his part, and this plaintiff, more than sixty days \ot^ as otherwise required Jyy the policy] before the commencement of this action, to wit, on the day of 185 , at , gave to the defendants due notice and proof of the death of said M. N. as aforesaid, and duly demanded payment of the said sum of dollars ; but the same has not been paid nor any part thereof, and the defendants are now justly indebted to this plaintiff thereon in the sum of , dollars, with interest from, &c. (a) ' Wherefore, &c. 4. On a Marine Policy. No. 135. I. [As in Form No. 132.] II. That on the day of 186 , at , in consideration of the premium of dollars, then and there paid to them by this plaintiff [or, which this plaintiff then and there agreed and became liable to pay to the defend- ants], (b) the defendants, by their agents duly authorized (z) See noU {e\ infra. It has re- 4 Seld., 299 ; affirming S. C, 4 mil, cently been held that self-destruction 74. in a fit of insanity is not a death by {a) See notes to the two preceding one's own hand, within the meaning forms. of the clause that the policy should (J) The complaint must aver pay- be void if the assured "shall die by ment or a liability to pay the pre- his own hand." Breasted v. The mium. 2 Oreenl. on Ev. §§ 376, 381 ; Farmers' Loan and Trust Company, PMl. on Ins., 611. 13 194 COMPLAINTS. Insurance of vessel. Inception of risk. Interest of plaintiff. thereto, made their policy of insurance in writing, of which a copy is hereto annexed (c), and delivered it to this plaintiff, and thereby insured for him dollars upon the ship [or, upon the cargo, or, certain goods, then laden, or, about to be laden, upon the ship] , then lying in the harbor of, &c. [or, as the case was], for a voyage from to , agaiast ■ the perils of the seas [or, the perils of fire, or, other perils'] and other perils in the policy mentioned. III. That on the day of 185 , the said ship sailed fr.om said on the voyage described in the policy (d), and while proceeding therein [or, during said voyage and while lying in the port of, &c.J was by the perils of the seas wrecked and totally lost [or, was burned and wholly destroyed by fire.](e) IV. That this 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] to an amount exceeding [the whole amount insured], to wit, dollars, (f) (c) See note (Jc), supra. (d) The inception of the risk is an essential fact to be proved. 2 Greenl. on Ml., 382. If the insurance was upon goods to be laden, state here that they were laden, and their loss. Marsh, an Ins. (3d ed), 244, 245, 278, 724. («) If it appear that certain risks were excepted, the loss should be so stated as to appear not to have been caused by those risks. In other words, the complaint must show a loss of a nature intended to be cov- ered by the insurance. Ellis on Fire Ins., 17,6; Phil, on Ins., 618, and cases there cited. But the plaintiff is not bound to negative all possible defenses. For example, where the policy contains a provision that no camphene was to ba used on the premises, it is not necessary to nega- tive a breach of the condition, for its observance is not necessary to be proved on the trial as one of the facts constituting the cause of action. If broken, the breach is a matter of de- fense, to be set up by the answer. Hunt ». The Hudson River Fire In- surance Company, 2 Duer, 481. (/) It has been held in the New York Common Pleas that since the passage of the act relating to wagers, &c. (1 Rev. Stat., 662, §§ 8, 9, 10), it NON-NEGOTIABLE INSTRUMENTS. 195 Necessity of aTerment of interest in the assured. is necessary that the plaintiff, in com- plaining upon a policy of insurance which, upon its face, did not show any interest in the plaintiff, should aver that the assured had an interest to be protected thereby ; and that an averment that the plaintiff 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. The Insurance Company of North Amer- ica, 9 Row. Pr. S., 365. See the principle laid down in this case, cited Jbrm No. 52, note (e), ante, 80. In a subsequent case in the Su- preme Court, the complaint on a policy of fire insurance alleged that the defendants,, in consideration, &c., insured R. C. against loss, &c., "on Ms three story and attic stone build- ing, &c., and on Ai's water wheel, and on a frame one-story building at- tached, occupied by the said assured," and the defendants demurred, and objected among other things that there was no averment of interest in the assured. The demurrer was overruled, the court being of opinion that the words " his " and " occupied by " contained a suflBcient averment of interest, Emott, J., dissenting. And it was said that if the averment was too general, the defendants' rem- edy was by motion. Fowler v. The New York Indemnity Insurance Company, 23 Barb., 143. The in- terest of the assured is one of the facts constituting the cause of action. 2 areenl. on Eo., §§ 376, 378-381. It cannot be urged, as in the case of a contract under the statute 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 distinctly appear in the policy as set forth or annexed. See 2 mil. on Ins., 612, §§ 2018, 2019 ; Ellis on Fire Ins., 1 75, note (1). This may be more briefly done by inserting after the description of the object insured, — " then, and until tlie loss hereinafter mentioned, the prop- erty of this plaintiff." In a declaration upon a policy of insurance on the cargo of a canal boat, it was held a sufficient aver- ment ef the plaintiff's interest to allege that the insurance was "for the account and benefit of the plain- tiff as a common carrier, for hire, &c. ;" and a sufficient averment of the liability incurred to state that an ^ amount of goods exceeding that men- tioned in the policy was entrusted to him as a carrier, and that they were consumed by fire, and the plaintiff thereby became liable to pay to the respective owners a greater sum than that insured. It is not necessary to aver actual payment. Van Natta v. The Mutual Security Insurance Com- pany, 2 Sand/., 490 ; and see De Forest v. The Fulton Fire Insurance Company, 1 Hall, 84. And as to the form of the averment of an assignee's interest in the subject insured, see Granger v. The Howard Insurance Company, 5 Wend., 200. It need not be averred that the plai-ntiff was interested at the time of making the policy. An interest at 196 COMPLAINTS. Actions on guaranties. For rent. Y. That tliis plaintiff duly fulfilled (g) all the conditions (h) of said policy of insurance on his part; and more than sixty days [or as otherwise required hy the policy,^ before the com- mencement of this action, to wit, on" the day of , 185 , at , he gave to the defendants due notice and proof of the loss as aforesaid, and duly demanded payment of said sum of dollars ; but the same has not been paid nor any part thereof, and the defendants are now justly indebted to this plaintift" thereon in the sum of dollars with interest from, &c. (I) Wherefore, &c. Y. GiTAKANTIES. ( j) 1. For Payment of Bent. No. 136. I. That on or about the day of , 1835, one M. N., by agreement in writing with this plaintiff, hired and the commencement of the risk is suf- Code, paragraph V. contains a suf- ficient. 2 Greenl. on Ev., 381, § 330 ; fleient averment of the fulfillment of i Phil, on Ins, 614. this and other conditions. All ex- (jr) The insurers may waive pre- press warranties and all affirmative liminary proofs. "Westlake ». The averments are of the nature of condi- St. Lawrence County Mutual Insur- tions precedent. 2 Oreenl. on Ev., ance Company, 14 Ba/rh.^ 205 ; Boyn- § 383. ton B. Clinton and Essex Mutual (i) See note (t), supra. For a brief Insurance Company, 16 lb,, 2-54. As * form for Contribution to general av- to pleading the waiver, see Form No. erage, see 2 Green, on Ev., 376, note '97, note (j), ante, 14:2, anA Form No. (1). For use under the Code, it 76, note (e), ante, 113. should be modified as to performance (A) Seaworthiness is a condition of conditions, &c., so as to correspond precedent which the assured is bound with the above form, to aver and prove. Moses v. The (j) For complaints by guarantor to Sun Mutual Insurance Company, 1 recover from his principal, moneys Duer, 159. Under section 162 of the paid, see Forms No. 38, 39, & 40, ante. KON-NKGOTIABLE INSTRUMENTS. 197 Guaranty of rent Default of principal. this plaintiff to him let the building No. Broadway, in the city of New York, at the yearly rent of two thousand dollars, payable quarterly, which by said agreement said M. N. prom- ised punctually to pay. II. That the defendant in consideration of the premises and of one dollar to him paid, and as security for the punctual payment of said rent, then and there subscribed and delivered to this plaintiff an agreement in writing, of wiiich the following is a copy : " In consideration of the letting of premises above de- scribed, and of the sum of one dollar to me in hand paid, I hereby become surety for the punctual payment of the rent therein mentioned ; and if any default shall be made therein, I hereby agree to pay unto A. B. pAe plaintiff'\ such sum or sums of money as shall be sufficient to made up such deficiency and fully satisfy the conditions of said agreement, without re- quiring any notice of non-payment, or proof of demand being made. " Given under my hand and seal this 1st day of May, 1855. " (Signed) Y. Z. [defend(mt\ (L. S.) " Signed, sealed, and delivered ) in the presence of ) (Signed) John Doe." III. And this plaintiff further shows that said A. B. occu- pied said premises under said agreement of hiring, from the 1st day of May, 1855, to the 1st day of May, 1866 ; that the said M. ]Sr. has made default in the payment of the rent thereof, and is now justly indebted to this plaintiff in the sum of five hundred dollars for the rent of said premises for the quarter ending May 1st, 1856, which though on the (Jay of , 1856, requested, he refused to pay. lY. That before the commencement of this action, and on the 12th day of July, 1856, this plaintiff [gave to the defendant due notice and proof of said demand and non-payment, and 198 COMPLAINTS. Demand on defendant. When necessary. then and there (k)] duly demanded payment (1) from the de- fendant of said sum of five hundred dollars ; but the same has not been paid, nor any part thereof [except, &c.J Wherefore, &c. 2. On an Agreement to he Answerable for Price of Ooods sold to third Party, (m) I. That on the No. 137. day of , 185 , at Qc) The words In parentheses are to be inserted if-the agreement does not waive notice of non-payment and proof of demand. {I) The absolute guarantor of pay- ment is liable without a preliminary demand on the principal. Clark «. Burdett, 2 Eall, 197 ; Mann v. Eck- ford, 15 Wend., 302 ; Eushmore v. Miller, 4 Edw., 84. But see The Mechanic Fire Insurance Company ., 512. Adams, 8 Cow., 35 ; Stone v. Knowl- (g) Where goods are sold on credit, ton, 3 Wend., 374 ; People v. Tilton, with an agreement that a specified 13 Ih., 597. And where by the con- security should be given, and the CONTRACTS.— UNLIQUIDATED DAMAGES. 245 Agreement of sale of real estate. in. On Conteacts kespecting the Sale of Eeal Peopektt. 1. Against Vendor, for Not Fulfilling Agreement to Convey, {t) No. 163. First. For a first cause of action. I. That on the day of 1850, this plaintiff and the defendant entered into an agreement in writing, under their hands and seals, whereby the defendant agreed — to sell to this plaintiff the farm the defendant then resided on, in the town of Hyde Park, in the county of Dutchess, and containing acres, or thereabout, for the sum of $70 per acre ; and that he would, on the 1st day of May then next ensuing, at the County Clerk's office, in the town of Poughkeepsie, between the hours of eight o'clock in the morning and six in the evening, on receiving from the plaintiff the sum of $70 per acre, at his own expense execute a proper conveyance for conveying the 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, on the execution of such conveyance, pay to the defendant the sum of $70 per acre as aforesaid ; and that in said agreement the defendant purchaser afterwards fails to giye on is given. And where in such the security, it is held that the pur- case the purchaser is a non-resident, chaser is liable to be sued as soon as the plaintiif may have an attachment his agreement to give security has against him under the Code. Ward been broken. If in such case judg- ■». Begg, 18 Bart., 139. ment is obtained before the credit is (r) For another form see Form No. expired, the court may, by virtue of 42, ante, 65, the first three paragraphs its equity power over its own judg- of which, adding at the end of the ment, postpone the collection of the last." to the damage of this plaintiflf judgment until the credit expires, or dollars," will be appropriate may vacate it, if the security agreed for this cause of action. 246 COMPLAINTS. Vendee's readiness. Vendor's default. acknowledged the payment by the plaintiif of $1,000, in part payment of said premises ; and further agreed to take a bond conditioned for the payment of six thousand dollars, secured by a mortgage on the said premises in payment of $6,000 of the purchase money, said bond and mortgage to be payable in one year from said 1st day of May, and to bear interest at six per cent, per annum ; and further agreed to pay this plaintiff, on failure of performance, one thousand dollars liquidated damages, (s) II. That on the \day agreed'l, at [the place agreed^ this plaintiff was ready and willing to fulfill the agreement on his part in all respects [or, where a tender was necessary : That on the day of 185 , at , the plaintiff was ready and willing to fulfill the agreement on his part in all respects, and then and there offered to the defendant to accept a conveyance of the premises, and tendered to the defendant a bond and mortgage drawn and executed pursuant to the agreement, and the residue of the purchase money in cash], (t) [but the defendant refused to convey the said premises, pursuant to the agreement, (u) ] III. That the defendant then could not and cannot now (s) Or the contract may be set out perform on part of the plaintiff and at length, or annexed to the com- a refusal by the defendant, was suf- plaint. See Form No. 166, note (a), ficient. Williams v. Healey, lb. (j) A distinction is observed be- Performance of a condition pre- tween conditions precedent and con- cedent may be briefly averred under current conditions. Under the old section 162. But it seems that per- system the rule prevailed that where formance of concurrent acts, such as an act or the performance of a cove- readiness and offer to perform, should nant on the part of the plaintiff was be averred substantially as before the a condition precedent, the declaration Code. But compare the English must aver specially all the facts show- Common Law Procedure A(it, 16 and ing his performance. Glovers. Tuck, 17 Vict., ch. 76, § 57; Bentley «. 24 Wend., 153 ; Williams v. Healey, Dawes, 25 Eng. L. & E., 540 ; Glenn 3 JDen., 363. But in the case of v. Leith, 22 lb., 489. mutual concurrent conditions, an (u) This averment is unnecessary averment of readiness and offer to where paragraph IIL is inserted. CONTRACTS.— UNLIQUIDATED DAMAGES. 24:7 Inability to make good title. convey a good title to the farm free of all incumbrances ; but, on the contrary, the same was and still is subject to various defects and inciimbrances, and in particular to a lease made by him to the trustees of the scbool district for the erection and use of a school house, and to the inchoate right of dower of the wife of one Valentine Baker, who is still living ; where- fore the defendant failed to perform Ids agreement, (v) to the damage of this plaintiff one thousand dollars. Second. And for a second cause of action, That the payment of $1,000 hereinbefore stated (w) to have been made by tbis plaintiff to the defendant, in pursu- ance of the said agreement, was made by a negotiable prom- issory note for that amount, made by this plaintiff, payable to the order of one "Wheeler C. Holmes and indorsed by him, which note was delivered to the defendant and accepted by him in payment of said sura of one thousand dollars ; and that said note still remains in the possession of the defendant. Wherefore this plaintiff demands judgment against the defendant for the sum of one thousand dollars, and prays that the defendant be required to cancel and deliver up to the plaintiff said note. 2. Agcdnst Vendee for Not Fulfilling Agreement to Purchase. No. 164. I. That on the day of , 185 , at , this plaintiff being the owner in fee of the land described in the agreement hereinafter set forth, this plaintiff and the («) This averment dispenses with (w) The statement of one cause of an averment of tender, where tender action may refer to another to avoid was not a condition precedent but repetition. See Form No. 61, mte only a concurrent condition. Holmes (x), ante., 94. But as to necessity of v. Holmes, 5 SeM., 525 ; afBrming separate statement here, see note (i), S. C, 12 Bcvrb.., 137. ante, 67; and mie (A;), ante., 72. 248 COMPLAINTS. Vendor against vendee. defendant entered into an agreement in writing under their hands and seals, of which the following is a copy : [Oopy of the contract.'] (x) II. That this plaintiff duly performed all the conditions of said contract on his part, and was ready and willing at , on the day of , 185 , and then duly offered to convey the said premises to the defendant, and to give him a deed thereof, upon payment to him of the purchase money [or, That on the day of , 185 , at , this plaintiff tendered to the defendant a deed of said premises pursuant to the agreement ] ; (y) but that the defendant neg- lected to comply with the terms of the agreement on his part, and failed to pay the purchase money or any part thereof, to the damage of this plaintiff dollars. Wherefore, &c. 3. Against Yendee^for Deficiency on He-sale. No. 165. I. That this plaintiff, being the owner in fee of twenty-six lots of land at Harlem, in the twelfth ward of the city of New York, once part of the estate of the late Charles Henry Hall, put them up to sale by auction, at the Merchants' Exchange, in the city of New York, on the 25th day of May, 1852 ; and announced before the commencement 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, George F. Tallman, and to the auctioneer, Anthony J. Bleecker, the auctioneer's fee of ten dollars on each ayenue (x) Or, the contract may be pleaded are to be used according to the cove- according to its legal effect, as in the nants of the agreement. See notes preceding form, or as in Form No. to the preceding forms in this sec- 42, ante, 65. But see Tiote (a), infra. tion. Add averments of any special (^) One or both of these averments damage, according to the fact. CONTRACTS.— UNLIQUIDATED DAMAGES. 249 Deficiency on resale. Covenant for rent. lot, and five dollars on each street lot ; and that if any pur- chaser failed to make such payments, the lots would be resold, and he be charged with the deficiency. II. That at the said sale, Henry L. Franklin, the defendant, bid in and became the purchaser of eight lots, four on 132d street, and four on 133d street, between the 5th and 6th ave- nues, being the lots numbered 132, 133, 13i, 135, 154, 155, 156, 157, on the map of said sale, for the price of $471 each lot. in. 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 previous notice given to the defendant of the time and place of re-sale, and that he would be charged with the defi- ciency, the said lots were put up to re-sale, and re-sold at the price of $400 for each lot, making a deficiency of $568 upon the eight lots. Wherefore, &c. This is the complaint in Talman v. Franklin, 3 Duer, 395. lY. Between Landlokd and Tenant. 1. By Landlord against Assignee of Lessee,— /or Rent, (z) No. 166. I. That on the day of , 185 , by a lease in writing, then made between this plaintiff and one M. N., under the hand and seal of said M. N. [of which a copy is hereto annexed (a)] this plaintiff leased to said M. E". certain (s) For a complaint for use and oc- more properly have been inserted in cupation, see Form No. 63, ante, 97. the preceding section. This and the following form would (a) In an action on an instrument 250 COMPLAINTS. Possession of tenant. Assignment to defendant. Default. lands situated in , known as \hriefly describe prem- ises], to have and to hold to said M. N. and his assigns, from the day of > 185 , for the term of , then next ensuing, for the yearly rent of dollars, payable to this plaintiff on the [state days of payment], which rent said M. IST. did thereby for himself and his assigns, cove- nant to pay to the plaintiff accordingly. II. That by virtue thereof, said M. E"., on the day of , 185 , entered into the demised premises, and was possessed thereof. III. That thereafter, and during said term, to wit, on the day of , 185 , {naming any day hefore the hreach] all the estate and interest of said M. N. in said term, by an assignment then by him made, became vested in the defendant (b) who thereupon entered into the demised prem- ises, and became possessed thereof, and continued so possessed from thence hitherto [or, until the day of , 185 .](c) IV. That after said assignment, and before the commence- ment of this action, to wit, on the day of , 185 , the sum of dollars of said rent, for the quarter ending on that day [or, otherwise] became due to this plaintiff from the defendant ; but no part thereof has been paid, (d) Wherefore, &c. in writing, it is best to set forth the to liability of one who has acquired instrument, or those parts of it in possession without a valid assign- question, or to annex a copy, and re- ment, see Carter v. Hammett, 13 fer to it as a part of the complaint. Barb., 253 ; Ryerss v. Farwell, 9 Ji., Fairbanks v. Bloomfield, 2 Duer, 849. 615. See note (h), infra. (c) The assignee is liable upon the (V) In this action it is not neces- covenants of the lease only for the sary to set forth the assignment spe- time during which he or his tenants cially, because it is a matter pecu- have possession of the premises. As- liarly within the defendant's knowl- tor v. L'Amoreaux, 4 Sand/., 524. edge. Van Rensselaer v. Bradley, 2 (d) It is suflBcient to show that Den., 135. See note (g), infra. As rent accrued subsequent to the as- CONTRACTS.— UNLIQUIDATED DAMAGES. 251 Lease. Possession of defendant. Conveyance of reversion to plaintiff. 2. By Grantee of Reversion, against Lessee,— for Rent. No. 167. ft I. That one M. N., being the owner in fee of \hriefiy de- scribe joremises'], did on the , day of 185 , by a lease in writing then made between him and the defendant, under the hand and seal of the defendant [a copy of which is hereto annexed (e)], lease to the defendant said premises from the day of j 185 , for the term of , then next ensuing, for the yearly rent of dollars, pay- able to said M. N., his heirs and assigns, on the [state days of jpayment'], which 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 the demised premises, and was possessed thereof. III. That thereafter, and on the day of , 185 , said M. N., by his deed, under his hand and seal, [a copy of which is hereto annexed] sold and conveyed to this plain- tiff the demised premises, of which the defendant had due notice, (f) lY. That thereafter, and before the commencement of this action, to wit, on the day of j 185 , the sum of dollars of said rent, for the quarter ending on that day [or otherwise'], became due to this plaintiff from the defendant ; but no part thereof has been paid, (g) Wherefore, &c. signment, and during the assignee's (/) The declaration should show possession is unpaid ; and it is un- the assignments or conveyances by necessary to aver, in addition, that which the plaintiff claims title, and if the lessee has not paid it. Djboisv. there are several, they should all be Van Orden, 6 Johns., 105 ; Van Rens- stated. See Beardsley v. Knight, 4 selaer v. Bradley, 8 Den., 135. Verm., 471. See note (5), supra, (e) Sfee note (a), snpra. (ff) See Tiote (d), supra. 252 COMPLAINTS. Between landlord and tenant. 3. Against Tenant, for Breach of Covena/nt to keep Premises in Repair. No. 168. • I. That on the day of , 185 , by a lease in writing then made between this plaintiff and the' defendant, nnder their hands and seals [or, under the hand and seal of the defendant] this plaintiff leased to the defendant for one year from said date, at a yearly rent of $200, a certain dwelling- house, with stable and sheds attached, in the village of , in the county of , the property of this plaintiff, the same being upon a part of the estate of M. N., deceased [or, otherwise 'briefly deserve the demised 'premises]. II. That said lease contained a covenant on the part of the defendant, of which the following is a copy : (h) \cojpy of the covenanf] (i) [or, 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 dwelling-house and premises in as good condition as he received 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, under said agreement ; but that he has failed to keep the said house Qi) The declaration need not set in the absence of any covenant, state out the whole of the contract, but the hiring, and set out a copy of the only such parts are necessary as re- lease. It is not sufiBcient merely to late to the breaches assigned. Sand- aver that it was the tenant's duty to ford ». Halsey, 2 2?«ra., 235. Seenoie keep the premises in repair. In gen- (a), supra. eral, it is not enough to aver that (i) "Where the action is founded such was defendant's duty. The not on an express covenant, but on a facts out of which the duty arose violation of the obligation arising out should be pleaded. City of Buffalo of the relation of landlord and tenant, «. HoUoway, 3 Seld., 493; Congreve CONTRACTS— UNLIQUIDATED DAMAGES. 263 Covenants to keep in repair. and premises in good repair ; but, on the contrary, lie 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 injury ( j)], and the house and premises are otherwise injured by reason of the neglect of the defendant to keep them in good repair, pursuant to his said agreement, to the damage of this plaintiff dollars. ^ Wherefore, &c. 4. Against Landlord, for Breach of Covenant to Tteejp Premises in Bejpair, with Special Damage. No. 169. I. That on the first day of May, 1856, by a lease in writing, then made between this plaintiff and the defendant, under their hands and seals' [or, under the hand and seal of the de- fendant], the defendant leased to this 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 avcovenant on the part of defendant, of which the following is a copy : [copy of covenant to keep in repair. ^ in. That this 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. lY. That the defendant has failed to perform said covenant and keep the premises in repair, but has allowed the walls and roof to become and remain leaky, by means whereof the water has entered said premises and utterly ruined a portion of his •0. Morgan, 4 Duer, 489 ; Seymour v. (j) Voluntary waste by the ten- Maddox, 16 Q. i)., 826; S. C, 71 ant should be specially stated. Mig. Com. L. R., 326. 254 COMPLAINTS. Between landlord and tenant. Ouster. said goods, and seriously injured others, to the damage of this plaintiff dollars. Wherefore, &c. 5. Against Landlord, for Breach of Covenamtfor Quiet Pos-^ session, (k) No. 170. I. That on the day of , this plaintiff and the defendant entered into an agreement under their hands and seals \or, under the hand and seal of the defendant], whereby this plaintiff hired and the defendant leased for the term of ten years from said date, at a yearly rent of dollars, the following described premises : [insert description from the lease.] II. That said lease contained a covenant on the part of the defendant, of which the following is a copy : [copy of covena/nt for quiet possession] [or, That ti)e defendant in said lease cov- enanted with this plaintiff that he should peaceably and qui- etly occupy and enjoy the premises aforesaid for the said term of ten years.] III. 1 hat this plaintiff has not been permitted peaceably to occupy and enjoy the possession of said premises ; but, on the contrary, after the commencement of the term, and on the day of J 185 , one M. N., who was at the time of making said lease, and thereafter, until the last mentioned day, the lawful owner of said premises (1) [or, lawfully entitled to (h) For complaints on breach of - adverse right existing at the time of covenant of warranty of title, &c., see .the making the covenant ; not a tor- Forms No. 176 and No. 177, post. tious disturbance, nor a lawful dis- (Z) The breach of the covenant for turbance by an adverse right subse- quiet enjoyment is an actual disturb- quently acquired. Greenby v. Wil- ance of possession by reason of some cocks, 2 Johns., 1 ; Grannis v. Clark, CONTRACTS.— UNLIQUIDATED DAMAGES. 255 Special damage. Agreement for lease. the possession of said premises] entered upon the same and ejected this plaintiiF therefrom, and has since kept him out of possession of the same. lY. That this plaintiff, confiding in the covenant of the defendant afore-mentioned, had purchased a number of farm- ing utensils and implements of husbandry for the cultivation of said premises, and had entered upon said premises and com- menced to raise grain and fruit thereon, when he was so ejected ; and that by reason of the defendant's failure to fulfill said covenant, said farming utensils and implements became of little or no value to him, and he was deprived of the result of his time and labors in cultivating said premises, to the damage of this plaintiff dollars. Wherefore, &c. 6. . Against Landlord, for Breach of Agreement to Complete Demised Premises well. No. 171. I. That on the day of 185 , at , the said plaintiffs entered into an agreement in writing, with the defendants, bearing date on that day, duly executed by the plaintiffs under the firm name of A. B. & Co., and by the defendants under the firm name of Y. Z. & Co. ; of which agreement the following is a copy : "Memorandum of agreement made this tenth day of No- vember, eighteen hundred and fifcy-two, between Y. Z. & Co., of the first part, and A. B. & Co., of the second part, wit- nesseth: Tijat the said parties of the first part have agreed to let, and the said parties of the second part have agreed to 8 GoW; 36 ; see cases cited 3 Oreenl. lenbach, 7 Johns., 376. For other on Ev., 239, § 243. As to an entry averments of ouster, see Form No. by the landlord, see Sedgwick v. Hoi- 176, post. 236 COMPLAINTS. Between landlord and tenant. hire, the premises known as the first floor and basement of number ninety-one (91) Liberty street, in the city of New York, upon the following terms and conditions, viz. : the build- ing now being erected upon said premises is to be finished, and possession thereof given by said parties of the first part, on the first day of January, eighteen hundred and fifty-three, provided, in the event of the premises not being fully com- pleted by the time specified, viz., the first of January, 1853, the said parties of the first part using all due diligence to secure the completion of said premises, — that the said parties of the second part are .not to pay any rent whatever until the premises are fully completed, as in said agreement hereinafter specified ; the said premises and fixtures to be finished in the same manner as the store now occupied by M. N., in the same street, and in addition thereto, the parties of the first part are to furnish shelving to the amount of five hundred dollars. On or before the first day of January, 1853, the parties of the first part are to execute a lease (to contain the customary condi- tions) of said premises to the parties of the second part, for the term of three years, at the yearly rate of three thousand five hundred dollars, to be paid on the usual quarter-days, which lease the parties of the second part agree to accept, it being understood, however, that there shall be no condition inserted in said lease to prevent the said parties of the second part from underletting said premises, if they desire so to do, provided that the said parties of the second part shall not underlet said premises for any other business than for fancy silk or dry goods business, unless by the written consent of the said parties of the first part. In consideration whereof, and of one dollar by each of the said parties to this agreement, to the other paid, they bind themselves, their heirs, executors, and administra- tors, each to the others, to the full and faithful performance of this agreement. In witness whereof, the parties hereto have hereunto interchangeably set their hands and seals, the day and year first above written. " (Signed) y. z. & co. « CONTRACTS.— UNLIQUIDATED DAMAGES. 257 For breach of agreement to finish demised premises well. II. That after the making of this agreement, and on or about the first day of February, 1853, the said defendants delivered and tlie said plaintiffs took possession of tlie first floor and basement of said building, under and in pursuance of said agreement, no lease or other agreement having been made or executed between the said parties ; and that the said plaintiffs took possession thereof upon the faith and assurance of the said defendants, and the lull belief thereof, 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. And the plaintiffs further state, that the said premises were not finished in the same manner as the store tiien (at the time of making such agreement) occuj)ied by M. 1^., in the same street, but on the contrary thereof, the roof of tlie said build- ing, and the gutters, water-courses, and leaders therefrom, were finished and constructed in a different and less perfect manner than those upon that store, and an obstruction was was placed over the top of the leader that conducted 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 water-course, from the roof of the store then occu- pied by said M. N., in the same street. lY. That in consequence thereof, the water falling upon the roof of said building mentioned in said agreement, was ob- stmcted and prevented from passing off through the gutters, water-courses, or leader, and was forced back upon and run through the. skylight in the roof, and down into the said first floor and basement, and upon the silks, goods, and wares and merchandise of the said plaintiffs' kept therein, and greatly injured the same, to the damage of these plaintiffs four thou- sand dollars. Wherefore, &c. This is in substance the complaint in TuUer v. Davia, 4 Duer, 187. 17 258 COMPLAINTS. Necessary averments, in an action on a false warranty. y. On Waekanties and Covenants of Title. 1. On Warranty of the Soundness of a Horse. No. 172. I. That on the day of 185 , at , tlie defendant having offered to sell and deliver to this plain- tiff a certain horse, warranted [and fraudulently represented](m) said horse to be kind and true. II. That this plaintiff, relying upon said warranty and representations, (n) then and there purchased said horse, and paid to the defendant therefor the sum of dollars. III. That at the time of said warrant;^ and sale the said horse was unsound, unkind, and untrue, and was infected with an infectious disease, and was utterly worthless, (o) and was known by the defendant so to be ; and that said horse still so remains. lY. That thereafter said horse infected with said infectious disease other horses of this plaintiff, of the value of dollars, by reason whereof one of said horses died (m) The words in brackets are not (n) The complaint must arer, and necessary to the cause of action upon the evidence show, that the plaintiff the warranty. No averment of was actually misled by relying on the knowledge or fraud is necessary to warranty. Holman«.Dord, 12 .BiirJ., support that action. Holman ■«. Dord, 336; The Oneida Manufacturing 12 Barb , 336 ; Williamson v. Allison, Society v. Lawrence, 4 (Jow., 440. 2 East, 446. But it is well to insert (o) The unsound condition of the the averment ; as the evidence upon chattel should be averred according the trial may fail to prove a warranty, to the fact. Under an averment (in yet may disclose a fraudulent repre- an answer) that the property was sentation or concealment, upon which, very poor and of very little value, it on a complaint in the above form, was held that the defendant could plaintiff might recover for the deceit, not prove that it was worth nothing. But see Edick s. Crim, 10 Barb., and was of no value. Deifendorff v. 445. Gage, 7 Barb., 18. CONTRACTS.— UNLIQUIDATED DAMAGES. 259 -»- Special damages recoverable. Genuineness of note. and the others were rendered worthless ; and this plaintiff was put to great expense in the care of said horses and in attempt- ing their cure, (p) V. That by reason of the premises this plaintiff was misled, to his damage dollars. Wherefore, &c. 2. On Warranty of the Genuineness of a Note. No. 173. I. That on the day of 185 , at , the defendant having offered to pass to this plaintiff, for a valuable consideration, a promissory note made by one M. N., payable to his own order, and indorsed by him, which note bore date the day of 185 , and was payable days from date, and was for the sum of dollars [or, a promissory note of which' the following is a copy, Copy of the note], then and there warranted the said note to have been in truth made by the said M. N^. II. That this plaintiff, relying upon said warranty, pur- chased said note of the defendant, and paid him therefor the sum of dollars. in. That in truth said note was not made by said M. N., but his name was forged thereto, (q) IV. That by reason of the premises this plaintiff was misled, to his damage dollars. Wherefore, &c. {p) The plaintiff may recover not animal warranted sound. Jeffrey v. only the difference between the value Bigelow, 13 Wend., 518. of the chattel as warranted and as (q) An averment that the defendant found to be, but also special damages knew the falsity of the warranty, is for injuries occasioned by the condi- not necessary ; but see note (m), tion of the chattel, as, the communi- supra. cation of infectious diseases by an 260 COMPLAINTS. Express or implied warranty of amount 3ue on a judgment. 3. On Warranty of the, Amount due on a Judgment assigned. No. 174. I. That on the day of 185 , the defendant, for a valuable consideration, duly assigned to this plaintiff a judgment which he had, on the day of , recovered in the Supreme Court, county of Herkimer [or, in the Court], for the sum of dollars, in a certain action wherein A. B., defendant above-named, vras the plain- tiff and one M. N. was defendant, which said assignment was in writing, under the hand and seal of the defendant. II. That said assignment contained a covenant on the part of the defendant, of which the following is a copy (r) {Copy of the covenant'], [or. That the defendant did therein and thereby warrant that there was due upon said judgment, from said M. N., the said sum of dollars, with interest thereon from the day of 185 .] III. That in truth, at the time of said assignment, said judgment had been paid in full \or, in part] to the defendant, and no part thereof \or, only the sum of dollars] was or now is due thereon. IV. That by means of the premises this plaintiff was misled, to his damage dollars. Wherefore, &c. (r) See note (a), supra. is, however, an implied warranty of The form of an assignment of judg- the amount due, in every assignment ment ordinarily in use, contains an of a judgment; and where no express express warranty of the amount due; . warranty is made, the complaint may and the form of complaint ahove is he drawn in the mode employed in adapted to that state of facts. There the two forms immediately preceding. CONTRACTS— UNLIQUIDATED DAMAGES. 261 Implied warranty of title. Judgment for possession, against plaintiff. 4. On Warranty of Title of Chattels sold. No. 175. I. That on the day of 185 , at , the defendant having offered to sell and deliver to this plaintiff for dollars, to be paid to him by this plaintiff, a certain pianoforte, warranted (s) [and fraudulently represented (t)] said pianoforte to be the property of defendant. II. That this plaintiff, relying (u) on said warranty [and representations], purchased the same from defendant, and paid to tlie defendant therefor the sum of dollars. in. That in truth said pianoforte was then not the property of defendant, but was owned by one ; all which defendant then knew. IV. That thereafter the said sued this plaintiff to recover possession of the same ; and that this plaintiff gave tlie defendant due and timely notice of the commence- ment of said suit, and that this plaintiff required him to defend the same, or judgm'ent upon failure to answer would be suffered ; but the defendant neglected to defend said suit, and such proceedings were afterwards had therein as tbat the said recovered, by legal process, possession of said pianoforte from this plaintiff, with dollars costs. V. Tbat by reason of the premises this plaintiff was misled, to his damage (T) dollars. Wherefore, &c. («) The presumption of law is, that the vendee takes at his own risk. 3 on a sale of chattels the vendor war- Kent., 5th ed., 478; McCoy v. Art- rants his title, unless at the time he cher, 3 Barb., 323 ; Dresser v. Ains expressly disavows an intent to do worth, 9 IJ)., 619; Edick «. Grim, 10 so (De Freeze v. Trumper, 1 Johns. It., 455. But as to the soundness 274 ; Heermance v. Vernoy, 6 II)., 6 ; of the latter exception see Story on Rew V. Barber, 3 Oow., 272), or unless Contracts, § 635. the chattel is out of the vendor's pos- (Q See note (m), supra. session at the time of the sale, in (m) See note (w), supra. which case, in the absence of fraud, (v) The measure of damages in an 262 COMPLAINTS. Conveyance to plaintiff by defendant, with covenant. 5. On Covencmt against Incumhranoes (w) on Real Property. No. 176. I. That on the day of 185 , the defendant, by his deed, under his hand and seal, for a valuable consider- ation therein mentioned, sold and conveyed to this plaintiff in fee simple \or otherwise, as the case leas'] a certain farm in the town of , county of , which is described as follows [or, which is more particularly described in said con- veyance, to which, duly recorded in the oflBce of the clerk of said county, in liber of conveyances, page , this plaintiff prays leave to refer with like effect as if the same were hereto annexed]. II. That said deed contained a covenant on the part of the defendant, of which the following is a copy (x) [Co^y of cov- enant]. III. That at the time of the making and delivery of said deed the premises were not free from all incumbrance \where the covenant excepted a mortgage or other incurnbrance add, other than the mortgage, or, lease, &c., therein excepted], but on the contrary the premises were subject to the (inchoate) action of deceit or warranty, against for defending the title. Armstrong the vendor upon a failure of title, is ■». Percy, 5 Wend., 535. But com- the damages and costs recovered by pare Lewis v. Peake, 7 Taunt., 152. the true owner against the vendee, (m) For a complaint on Covenant with interest thereon. Blasdale v. for Quiet Enjoyment, see Fwm, No. Babcock, 1 JoTins., 517 ; Armstrong v. 170, ante. In an action for breach of Percy, 5 Wend., 535. But where the a Covenant of Seisin or of a Covenant article is replevied of the vendee, he of Power to Convey, it is enough to can recover only its value, of the ven- aver the breach in the words of the dor, and not the damages recovered covenant. RickertB. Snyder, 9 IFera^Z., against him for its detention, nor the 416 ; 4 Kents Com., 479. fees paid by him to his own attorney (x) See note {a), supra. CONTRACTS.— UNLIQUIDATED DAMAGES. 263 Existing incumbrance. Plaintiff's expenditure in removing it. right of dower of one M. N., wife [or, widow] of one O. N., the former owner of the premises [or, but on the contrary that on the day of 185 , one M. N. recovered a judgment in the Court at , against the de- fendant for the sum of dollars, which judgment was on the day of , 185 , docketed in said county of [the county where the premises are situated], and which judgment, at the time of the execution and delivery of the deed, remained unpaid and unsatisfied of record]. lY. That by reason thereof this plaintiff was obliged to pay (y) and did, on the day of 185 , pay, the sum of dollars in extinguishing the right of dower, [or, the lien of the judgment] aforesaid, (z) to the damage of this plaintiff dollars. Wherefore, &c. 6. On Covenant of Warranty on Real Property. No. 177. I. That on the day of 185 , at , the defendant, . by his deed under his hand and seal, for a valuable consideration therein mentioned, sold and conveyed to this plaintiff [hriefly describe the premises'], in fee simple [or otherwise, as the case was]. {y) Compulsion by suit is not There is an exception in the case of necessary. Prescott v. Trueman, 4 a covenantee vi^ho bought for the pur- Mass., 627. pose of a resale, the covenantor having (z) If the plaintiif has not paid off had notice of this intention at the or bought, in the incumbrance, he time of the sale. Bachelder d. Stur- can recover only nominal damages. gis, 3 CVs'A., 201. In such case those See Delaverque v. Norris, 1 Johns., facts, and the diminished value of the 358; Hall ». Dean, 18 IJ)., 105; estate under the incumbrance, should Stanard «. Eldridge, 16 Ih., 254. be alleged. Where' the covenantee 261 COMPLAINTS. On covenant of warranty of title. Ouster. II. That said deed contained a covenant on the part of the defendant, of which the following is a copy (a) {Copy of cove- nant of loarranty]. III. That the plaintiff afterwards lawfully entered upon the premises, and became seised tliereof accordingly, (b) lY. That the defendant has not warranted and defended the premises to the plaintiff; but, on the contrary, on the day of 185 , one M. N., who at the time of making said deed had, and ever since until the last-mentioned day, continued to have, lawful right to the premises by an elder and better title, did lawfully enter the premises, and ousted the plaintiff thereof (c) [or, but, on the contrary, one M. N., law- fully claiming the same premises by an elder and better title, afterwards, in an action brought by him in the Court, held at , in which said M. N. was plaintiff and this plaintiff was defendant, did, on the day of 185 , recover judgment against this plaintiff for his seisin and has paid off the incumhrance, the ex- and better title, and lawfully then penditure is a special damage and held and still holds this plaintiff out should be specially averred. De For- of possession thereof, to the damage, est V. Leete, 16 Johns., 122. &c. (a) See note (a), supra. (c) In order to sustain an action (J) It is said that where the cove- for the breach of a general covenant nantee is held out of possession by of warranty, an actual eviction or one in actual possession under a para- ouster of the plaintiff from the pos- mount title at the time of the grant, session of the whole or a part of the the covenant is broken. Whitty v. premises by process of law, or law- Hightower, 12 ySwe^. c6 Jf , 478. In. fully by paramount title, must be such case omit this allegation and averred and proved. Rickert v. Sny- add, — der, 9 TFera(?., 416. And a complaint III. That the defendant has not averringthattheplaintiflfwaslawfuUy warranted and defended the premises evicted from the right and title to to this plaintiiF; but, on the contrary, said prenjises by a paramount and at the time of the making and deliv- lawful title to the same, does not im- ery of said deed one M. N. was seised port an ouster from possession. Bly- and possessed of the premises, law- denburgh v. Cotheal, 1 Duer, 176. fully claiming the same by an elder CONTRACTS.— UNLIQUIDATED DAMAGES. 266 On a promise of marriage. possession of .the premises, (d) and afterwards and on the day of 185 , (by virtue of a writ of execution duly issued thereon), lawfully entered the premises and ousted the plaintiff thereof], and still lawfully holds him out of the same, to the damage of this plaintiff dollars. Wherefore, &c. VI. Foe Breach of Peomise of Maeeiage. (e) No. 178. I. That on the day of 185 , at , in consideration that this plaintiff, who was then unmarried, would, at the request of the defendant, marry hiin on request. (d) If the covetiantor has notice of the action, the covenantee is not bound to defend, Jackson v. Marsh, 5 Wend., 44 ; and the proceedings will be conclusive against the covenantor in this action. Cooper v. Watson, 10 lb., 202. Verbal notice is suffi- cient. Miner ii. Clark, 15 lb., 425. But see Kelly v. The Dutch Church of Schenectady, 2 Hill, 106. (e) The fact that actions for breach of promise are brought almost exclu- sively by females, has caused it to be supposed by many that no action lies by a man for breach of promise by a woman. And in support of this view a distinction has been suggested, of this sort ; that marriage to the woman involves a pecuniary settlement in life, the loss of which is the ground of her action, while on the part of the man there is in general no such element involved, but the advantages derived to him are of a character not capable of pecuniary valuation. We consider the law clearly to be, how- ever, that the action lies in behalf of the man for such loss, properly the subject of damages, as he may be able to show himself to have sus- tained. Harrison v. Cage, 1 Ld. Raym., 386. The form given above is only adapted to an action by a female ; but it is so drawn because that form only is practically of any use, — and the differences, indeed, are wholly immaterial, — not because it is considered that the action does not lie between the parties reversed. 266 COMPLAINTS. For breach of promise of marriage. the defendant promised (f) to marry this plaintiff within a reasonable time, (g) II. That this plaintiff, confiding in said promise, has always since remained and now is ready and willing (h) to many the defendant, but the defendant refuses to marry this plaintiff, to her damage dollars, (i) Wherefore, &c. (/) That a complaint might be good on demurrer though not on motion, where, instead of averring a promise, it alleged a conversation in which plaintiff taxed defendant with having made a promise and defendant distinctly admitted the charge, see Buzzard ■». Knapp, 13 How. Pr. i?., 504. {g) This is commonly the tenor of the promise ; for a promise to marry without specification of time, gives the party a reasonable time. If, how- ever, the promise were in fact to marry on a set day, it should be so averred. Po, also, if it were to marry on request. In the latter case a re- quest must be averred and proved ; unless the defendant has, by his own act, incapacitated himself from mar- rying, in which case it is unnecessary. Short «. Stone, 8 Q. B., 358 ; S. C, 50 Eng. G. L. B., 356 ; Caines ii. Smith, 15 Mees. d W., 189 ; Harrison V. Cage, 1 Ld.Eaym., 386; Millward v. Littlewood, 1 Eng. L. & Eq. S., 408. And compare Lovelock v. Frank- lyn, 8 Q. E., 371 ; S. C, 50 Eng. C. L. R, 371. (A) Except in the case of a promise to marry on request, the necessity of averring request is dispensed with. " The modesty of the sex," says Lord Coke, " is considered by the common law. It can hardly be expected that a lady should say to a gentleman, ' I am ready to marry you ; pray marry me.' " See 1 Parsons on Contr., 544. An allegation, after stating the breach, that defendant broke his promise, fraudulently intending to deceive and injure the plaintiff, may be struck out on motion. Leopold ». Poppenheimer, 3 Code P., 39. (i) Damages may be recovered in these actions not only for pecuniary loss, but also for suffering and injury to condition and prospects. 1 Par- sons on Conir., 543, and cases cited lb., note (i). And it is held that where, in an action by a female for a breach of promise to marry, it ap- pears that the defendant's promise to marry the plaintiflf 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 Pari., 323. Evidence of impaired health of the plaintiff is inadmissible, unless that be alleged in the complaint as special damage resulting from the breach. Bedell v. Powell, 13 Park, 183. CONTRACTS.— UNLIQUIDATED DAMAGES. 267 Landlord's promise to indemnify against ground rent. VII. Foe Breach of Agreement to Indemnify. 1. Against Principal, (j) No. 179. I. That at the times hereinafter mentioned the defendant held certain premises {description of leasehold premises'] as tenant thereof, to one M. IS., at a yearly rent of dollars, payable by the defendant to said M. N., on the [state days of payment]. II. That on the day of 185 , in considera- tion that this plaintiff then became the tenant to the defend- ant 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 promised that he would, during the continuance of the tenancy of this plaintiff, indemnify him and save him harmless from and against the payment of the rent payable to M. N. as aforesaid, and from and against all costs, damages, or expenses to which he might be put by reason of any default in the pay- ment thereof, (k) III. That the defendant, contrary to his promise, omitted to pay the rent which became due from him to said M. N. on the day of 186 , which was during the tenancy of this plaintiff under said agreement. lY. That by reason thereof said M. N., on the day of 185 , in the Court of , commenced proceedings to recover possession of said premises, which (j) The allegations of the following a precedent that varies from them. form may easily be modified to a If the promise was in writing it complaint against the principal. should be set forth. See Form No. Qc) The terms of the promise should 166, paragraph I., and note. be truly stated, and not according to 268 COMPLAINTS. On agreement to indemnify. were then occupied by the plaintiff under said agreement, for the non-payment of said rent ; and thereby the plaintiff was obliged to pay, and on the day of " 185 , 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 proceedings; and was put to great trouble and inconvenience, to the damage of this plaintiff dollars. (1) Wherefore, &c. 2. Against Sureties. No. 180. New Yoek Supeeioe Couet. James McGee against Terence Koen, John Danagh, John Doyle, and George McDonald. The complaint of the plaintiff shows to this court : — I. That on the 18th day of October, 1854, the plaintiff and one Thomas McKenna, theretofore co-partners in business as plumbers, in the city of New York, under the firm of McKenna & McGee, 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 the ([) The plaintiflf may sue to recover ante, 56. But where damages he- the rent paid, as for money paid to yond that are sought, they should the use of the defendant. See Forms, be specially stated as above. CONTRACTS.— UNLIQUIDATED DAMAGES. 269' Indemnity against partnership debts. Defendants undertaking aa sureties. said McKenna should retain and keep to his sole and separate use all and singular the partnership property of every name and character, whether in action or possession, and whereso- ever situated ; and in consideration thereof, whereas the said co-partnership was indebted to sundry persons in sundry con- siderable sums of money, should pay and discharge the debts so due by the said firm of McKenna & McGee to the extent of twelve hundred and seventeen dollars and sixty-seven cents out of and from his own, the said McKenna's, individual resources, and to the like extent hold the plaintiff harmless and indemnified, of and from and by reason of any claims or liabilities due by the said firm of McKenna & McGee [or, which agreement contained a covenant on the part of the said McKenna, of which the following is a copy : (m)] II. That the defendants, in consideration of said agreement between said McKenna and the plaintiff, and of one dollar to each of them in hand paid by the plaintiff simultaneously with the execution of such agreement, entered into an under- taking in writing, duly executed and signed by them respect- ively, and delivered to the plaintiff [a copy whereof is hereto annexed (m)] whereby they severally undertook and bound themselves to the plaintiff for the faithful performance by the said Thomas McKenna of the agreements in said agreement between said McKenna and the plaintiff contained, to be kept and performed on his the said McKenna's part. III. That said McKenna, under his said agreement with the plaintiff, retained and kept to his sole and separate use all tbe partnership property of the firm of McKenna & McGee ; 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 claims or liabilities due by the said firm. IV. That at the time of the dissolution of the partnership, (m) See Form No. 166, note (a), ante. 270 COMPLAINTS. Against sureties. and agreement aforesaid, the said firm of McKenna & McGee were indebted to the firm of Thomas Otis Leroy & Co., of the city of New York, for merchandise sold and delivered, in. the sum of one hundred and seventy-nine dollars and eighty-one cents, which was then due and payable ; that said indebted- ness to Thomas Otis Leroy & Co., formed a part of the twelve hundred and seventeen dollars and sixty-seven cents of debts of McKenna & McGee, and was included among such debts to be paid by the said McKenna under his agreement aforesaid with the plaintiflF ; but the said McKenna, although requested, would not pay or cause to be paid to said Thomas Otis Leroy & Co. the said indebtedness to them of McKenna & McGee, or any part thereof. V. That on the 23d day of August last, an action was duly commenced by the plaintiff, in the Court of Common Pleas for the city and county of New York, to recover upon and by vir- tue of the aforesaid agreement from the said McKenna, the said amount with interest then due by the said McKenna & McGee to the said firm of Thomas Otis Leroy & Co., amount- ing to one hundred and ninety dollars and twenty-five cents, and interest thereon ; and such proceedings were thereupon had, that on the 10th day of December, inst., judgment was recovered in such action in favor of the plaintiff against the said McKenna for the sum of two hundred and forty-two dol- lars and fifty-five cents, including costs ; upon which judgment execution was at once duly issued against the said McKenna, and is returned wholly unsatisfied. YI. That prior to the commencement of said action, the plaintiff caused notice in writing to be served on the defend- ants respectively, as sureties aforesaid, of his intention to com- mence such action to compel the payment of the indebtedness aforesaid to said Thomas Otis Leroy & Co., by said McKenna, or for him ; but the defendants altogether neglected to pay attention to said notice. Yll. That the plaintiff has necessarily paid or expended, in consequence of the neglect and refusal of said McKenna to CONTRACTS.— UNLIQUIDATED DAMAGES. 2Y1 On agreement to indemnify. comply with his agreement aforesaid with the plaintiff, at dif- ferent times since the said 18th October, 1854, in addition to the costs of said action included in said judgment, fur legal costs, counsel fees, disbursements, and for other reasonable expenses, divers sums of money amounting in the aggregate to ninety dollars, which remain due and unpaid to the plain- tiff by the said McKenna, who, although [on the day of , 185 , (n)] requested, refuses to make payment thereof to the plaintiff; whereby the right accrued to the plaintiff to have and receive of the defendants as sureties afore- said, the amount of said judgment, two hundred and forty-two dollars and fifty-five cents, with ] nterest thereon from the day of rendition thereof, namely the 10th day of December, 1855, and also the amount due and unpaid to the plaintiff as afore- said for legal costs, counsel fees, disbursements, and expenses, namely, ninety dollars, according to the tenor and effect of their undertaking, as aforesaid. YIII. That the defendants, although [on the day of , 185 ,J requested, (n) have not paid to the plaintiff the amount of said judgment, or the legal costs, counsel fees, disbursements, and expenses aforesaid, but are justly liable to him therefor in the sum of three hundred and thirty-two dol- lars and fifty-five cents, for which, with interest on two hun- dred and forty-two dollars and fifty -five cents thereof from the said loth December, 1855, and on the balance from the 24th day of December, 1855, the plaintiff asks judgment against the defendants, with his costs in this action. JoHK 0. Deveeeux, Plaintiff^s Attorney. This is the complaint in McGee v. Roen, 4 Ahbotts^ Pr. P., 8. (0) (n) As to when request will be stantially as it was actually used. It necessary to be averred and proved, was sustained on demurrer before see Form No. 136, note (I), ante, 198. the special term, (o) We give the complaint sub- 272 COMPLAINTS. Analysis of Section XIII. Actions against Carriers. SECTION XIII. Complaints in Actions against Bailees. I. — Against Caebiers. 1. Against a common carrier ; for loss of goods. 2. For the same ; for breach of the carrier's duty. 8. Against a common or private carrier ; for loss of goods ; — on a special contract. 4. Against the same ; for injury to goods carried by water. 5. Against the same, for failure to deliver at the time agreed ; — with special damage. 6. Against common carrier for failure to deliver in a reasona- ble time, — with special damage. 7. Against the same ; for injuries to the person of passen- ger. II. — Against Waeehousemen. 1. For loss of goods. 2. For injury to goods. III. — Against Pledgees. 1. For loss of pledge. 2.' For injury to pledge. lY. — Against Inhkeepek. For loss of trunk. I. Against Caekiees. 1. Against a Common Carrier / for Loss of Goods, (p) No. 181. I. That at tlie times hereinafter mentioned, the defendant was a common carrier \or, the defendants were common car- (p) The action should be for con- carrier, independent of the obliga- version of the goods only when act- tions arising out of the relations be- ual wrong is chargeable upon the tween him and his employer. For AGAINST BAILEES. 273 Common carriers of Goods. Loss, riers, (q) doing business as such as partners under the firm of Y. Z. & Co., or, were common carriers, jointly interested as such, (r)] of goods, for hire, between the places (s) hereinafter mentioned, (t) n. That on the day of , 185 , at , in consideration of the sum of dollars then paid, [or, agreed to be paid] to him by this plaintiff, \or, 6f a reasonable compensation then agreed to be paid to him by this plaintifi", or, in consideration that this plaintiff delivered to the defend- ant certain goods hereinafter mentioned,] the defendant agreed safely to carry to , and there deliver to , or order [or, otherwise as the case was\, certain goods, the prop- example, trover would not lie if the carrier had lost the goods by his mere omission. Koss v. Johnston, 5 Burr., 2825 ; Kirkman v. Hargreaves, 1 Selw. N. P., 425 ; Dwight d. Brewster, 1 Pick., 50 and 58 ; Owen e. Lewyn, 1 Yent/r., 223 ; Anon., 2 SaTk., 655 ; Packard ■». Getman, 4 Wend., 613 ; Hawkins ti. HoiFman, 6 Hill, 586 ; but see Ostrander v. Brown, 15 Johns., 39. But other- wise if he has possession and refuses to deliver, or if he has misdelivered them, or appropriated them to his own use ; for here is a conversion of the plaintiff's goods. Devereux v. Barclay, 2 Bamw. &A.,70^; Youl V. Harbottle, 1 Peake E., 49; Ste- venson ®. Hart, 4 Bing., 483 ; Pack- ard v. Getman, 4 Wend., 613. (q) If the defendants are a corpo- ration, aver that fact as in Form No. 183; see note (m), ante, 127, and add, — " and, at the times hereinafter mentioned, being such corporation, 18 were common carriers of goods for hire, between," &c, as above. (r) If the action is upon the con- tract, a joint contract by all the de- fendants must be proved. As to when one carrier may be held for a loss occurring on the route of another with whose business he was con- nected, see 2 Oreenl. on Eb., 208, and cases cited ; Hart v. The Rensselaer and Saratoga Railroad Company, 4 8eld., 37 ; Campbell v. Perkins, 4 lb., 430; "Wright v. Bough ton, 22 Barl., 561. («) We do not consider it neces- sary to state the whole route of the defendants. In many cases this would be impossible. All that is requisite is to show that they were carriers between the place where the goods were received by them and the place where they should have deliv- ered them. See Clark t. Faxton, 21 Wend, 163. (t) See note (d), infra. 27i COMPLAINTS. Against common carriers. "Who plaintiffs. Contract explainable. erty of (u) this plaintiff (?) of the value of dollars, con- sisting of \]iere describe the good4\, which this plaintiff then and there delivered to the defendant, who received the same upon the agreement and for the purposes before men- tioned, (w) ni. That the defendant did not safely carry and deliver the said goods pursuant to said agreement ; but, on the contrary, the defendant so negligently conducted and so misbehaved, in regard to the same in his calling as carrier, that they were wholly lost to this plaintiff, to his damage dollars. Wherefore, &c. 2. For the same ;—for Breach of the Carrier'' s Duty, (x) No. 182. I. [_State that the defendants were common carriers, as in Form No. 181.J II. That on the day of , 185 , one M. N. delivered to the defendants, and they, as such carriers, accepted, certain goods the property of this plaintiff, to wit : \_desGribe the goods,'\ of the value of dollars, to be by the defend- («) This allegation will admit evi- ting or embodied in a receipt, the bet- dence ojf a special property, which is ter way is to set out a copy of it, as in suificient to maintain the action. the following form. See note (d), in- ■ (d) The carrier is liable to the con- fra. Where the defendants, being signer or to the consignee for a both carriers and forwarders, took loss or tardy delivery, according to goods in pursuance of a previous the right of property. A consignee oral agreement to carry, and gave a who has made advances on the goods receipt for the goods expressing that may maintain the action. Dows v. they were received " to T)eforwardeci" Greene, 16 Barh., 72; Dows v. Cobb, EeU, that they were liable as car- 12 lb., 310; Ogden ». Ooddington, 2 riers. Blossom v. Griffln, 3. Kern., E. B. Smith's C. P. B., 317 ; and see 569 ; and see McCotter «. Hooker, 4 Pitzhugh V. Wiman, 5 Seld., 558. Seld., 497. {w) If the agreement was in wri- (x) This form is proper where AGAINST BAILEES. 275 Carriers. For brea'oh of duty. For breach of contract. ants safely carried to , and there delivered to , for a reasonable reward to be paid by therefor, (y) III. That the defendants did not safely carry and deliver said goods ; but, on the contrary, so negligently conducted, and so misbehaved in regard to the same in their said calling as carriers, that the same were wholly lost to this plaintiff, to his damage dollars. Wherefore, &c. 3. Against a Common or Prvoate Ca/rrier ; for Loss of Goods, — on a Special Contract, (z) No. 183. I. [That the defendants are a corporation created by and under the laws of this State [or, the State of J, organized pursuant to an act of the legislature [of said State] entitled " An Act to Authorize the Formation of Railroad Corpora- tions, and to Regulate the same," [or other aGt] passed April 2d, 1850, and the acts amending the same, (a)] II. That on the day of , 185 , at , the plaintiff delivered to the defendant [or, if a corporation, to the defendants, being such corporation], certain goods, the property (b) of this plaintiff, to wit : [describe the goods'] of the there was no contract, and the car- red that the defendant was a carrier, rier is sought to be made liable solely Bristol v. Rensselaer and Saratoga as for a breach of his public duty. Railroad Company, 9 Barl., 158. See (2/) See notes to preceding form. Form No. 181, and notes. This form («) This form is appropriate only is proper for an action upon the con- where the pleader relies on a special .tract of a private carrier, contract as defining the liability of {a) For authorities see Forms of the carrier in the respect in which a Averments op Incoepokation, No. recovery is sought. If the liability 20, ante, 41, and Form No. 88, note on which he relies is that of the car- (m), amte, 127. Tier's pubUc duty, it should be aver- (S) See note («), supra. 276 COMPLAINTS. Special contract with carrier. Consideration. Perils excepted. value of dollars, and in consideration (c) of tlie sum of dollars [or, of a reasonable compensation] paid [or, agreed to be paid] to Mm by the plaintiff, the defendant then and there entered into an agreement with this plaintiff in wri- ting, siibscribed by the defendant [by his agent duly author- ized thereto], of which agreement the following is a copy : [copy of the agreement.'] (d) III. That the defendant did not safely carry and deliver said goods pursuant to his agreement ; but that he so negligently and carelessly conducted in regard to the same that they were wholly lost to this plaintiff; (e) [or, but that he failed to de- (c) In an action upon the contract, a consideration for the carrier's un- dertaking must be stated, or it will be regarded as having been made 'without consideration. Bristol v. Kensselaer and Saratoga Kailroad Company, 9 Ba/rb., 158. But it is not necessary to state what the con- sideration was. 2 CMtt. PI., 357, n. (d). And the delivery of the goods is a sufiBcient consideration. Streeter 1). Horlock, 7 J. B. Moore, 283. ((Q Where there is a special agreement, defining the liability of the carrier in the respect in which a recovery is sought, the action must be on the contract for a breach of it, and not as in tort. Masters s. Strai- ten, 7 Eill, 101 ; Wilbur e. Brown, 3 Ben., 356. In such case it is imma- terial that the defendant is a common carrier. He is liable for the violation of his contract. See 2 Chitt. PI., 356, note (a). But it was usual to aver that in a declaration in assump- sit, as well as to aver negligence on his part, both of which belong rather to an action for breach of the carrier's public duty, than to an action on the contract. There is much conflict among the cases as to whether the action should be treated as one on contract, or for breach of public duty. Compare the following recent cases. Campbell ». Perkins, 4 Seld., 430 ; Greene v. Clark, 2 Kern., 343 ; Dorr B. The New Jersey Steam Navigation Company, 1 Kern., 485. Thurman V. Wells, 18 Ba/rb., 500; Heine «. Anderson, 2 Buer, 318 ; Butler v. The New York and Brie Railroad Company, 22 Ba/rl., 110. (e) If the contract excepts certain perils, it should 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 public? enemies, nor in consequence of negligence or fraud of the plaintiff, because the burden of proof is on the carrier to show those facts, if he relies on them. 2 Oreenl. on Ev., §§ 21 9, 220. But if the contract pre- scribes any conditions, such as notice AGAINST BAILEES. 27Y Carriers and forwarders. Injury to goods. liver tliem to , although on the day of , 185 , at , he was requested so to do (f )], to the damage of this plaintiff dollars. "Wherefore, &c. 4. Against the Same,— for Injury to Goods carried hy Water. No. 184. I. That on the day of 185 , at the port of , the defendant being master and commander of a vessel known as the , then lying at said port, {g) this plaintiff caused to be shipped on board said vessel certain merchandise, the property of this plaintiff, of the value of dollars, consisting of [here descrile the goods'], then in good order and well conditioned, (h) in consideration where- of and of the sum of dollars, then and there paid [or, agreed to be paid] by this plaintiff [or, by one M. N.] to the defendant [or, in consideration of a reasonable compensa- tion by this plaintiff agreed to be paid to the defendant therefor], the defendant then and there promised to take care of and 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 upon the agreement and for the purposes aforesaid, (i) to the carrier of the contents or n. Rensselaer and Saratoga Railroad value, it must be averred that he had Company, 9 Barb., 158. isuch notice, or that he waived it. lb., {g) Or if the defendants were com- § 218. Yet this is held not to apply mon carriers, state it, as in Form No. ' where the lack of notice was intended 181 . to go only to the amount of damages. (A) Omit these words if not in the lb., § 209. bill of lading or agreement. 2 CMtt. (/) Where demand on the carrier PI., 366. is necessary to be proved, it must be {%) If the contract was in writing, averred in the complaint. Bristol set it out, as in Form No. 183. 278 COMPLAINTS. Against carrier, for injury to goods. For failure to deliver in time. II. That at the time said goods were so shipped on board the and received by the defendant, this plaintiff caused due notice to be given to the defendant that it was necessary to the preservation of said goods that they should be kept in a dry condition, (j) III: That the defendant failed to take care of or safely to carry said goods, but, on the contrary, not regarding his said promise, so negligently and carelessly carried the same [or, so negligently conducted and so piisbehaved in regard to the same in his said calling as a carrier] that , they became wet, and thereby entirely ruined [or state other injury, m its nature and extent, aeoording to the facts (k)] ; which injury was occa- sioned, not by reason of any danger of the seas, (1) but wholly through the negligence of the defendant. IV. That by reason of the premises this plaintiff was injured, to his damage dollars. Wherefore, &c. 5. Against the Same,— for Failure to Deliver at the Time Agreed I with Special Damage. No. 185. I. [State that the defendants were oommon carriers, if such is the case, as in Form N'o. 181.] II. That on the day of 185 , at , this plaintiff delivered to the defendants one hundred fat sheep, of the value of dollars, the property of this plaintiff, which the defendants, in consideration of (j) If the carrier have notice, by 41 ; and Sager b. Portsmouth, &c., writing on the article or package, of Railroad Company, 31 Maine, 228. thiyieed of peculiar care, he is bound (Jc) See Form No. 172, note (o), to comply with such directions. See a/nte, 258. Baxter ®. Leland, 1 AbboM Adm. JR., (J) See 7Wt4 (e), supra. 348 ; Hastings v. Pepper, 11 Fick, AGAINST BAILEES. 279 Failure to deliver at the time agreed. dollars [or, of a reasonable compensation to be] paid them by this plaintiff, agreed safely to carry to the city of New TSsrk, and there deliver to this plaintiff, on or before the day of 185 . (m) m. That the defendants did not fulfill their agreement safely to carry the same and to deliver them in New York on said day ; but, on the contrary, although the period between the said [day of deli/very to defendants] and said [day on which they should have been delwered to plaintiff'] was a reasonable time for carrying the same from to the city of New York, yet the defendants so negligently and carelessly con- ducted [and so misbehaved in regard to the same, in their calling as carriers], that they failed to deliver the same in New York until the day of 185 . IV. That the market value of said sheep in the city of New York on the [day agreed] was dollars, but on the [day of actiial delivery] was only dollars ;(n) and that by reason of the premises the plaintiff was injured to his damage dollars. Wherefore, &c. 6. Against Common Carrier,— for Failure to Deliver in a Reasonable Time ; with Special Damage. No. 186. I. That fhe defendants are a corporation, created by and under the laws of this State, organized piirsuant to an act of (?») See notes to preceding forms. in the Supreme Court, 8th district, (m) Where there was no contract that the plaintiffs could not recover as to the time of delivery, the carrier as damages the difference in market is only liable for a delay caused by value. Wibert v. The New York, his actual negligence (see* noU (p), & Erie Railroad Company, 19 Bari., infra) ; and in such a case it was held 36. The judgment was affirmed 280 COMPLAINTS. Against Carriers. Failure to deliver in reasonable time. the Legislatiire, entitted " An Act to authorize the formation of Kailroad Corporations and to regulate the same," passed April 2d, 1850, and the acts amending the same, and at the times hereinafter mentioned, being such corporation, were common carriers of goods for hire, between the places herein- after mentioned, (o) 11. That on the day of 185 , at , at about 11 o'clock, P. M., in consideration of the sum of dollars then and there paid [or, for a reasonable compensation agreed to be paid] to them by this plaintiff, the defendants agreed to carry to and there deliver to this plaintiff, within a reasonable time after the receipt thereof by them as aforesaid, one hundred cans of milk, the property of this plaintiff, of the value of dollars, which this plaintiff then and there delivered to the defendants, who received the same upon the agreement and for the purposes aforesaid. in. That hours was then the usual time occupied by the trains of the defendants in going from to , and was a reasonable time for the transportation of said milk. IV. That the defendants failed to deliver the same within that time, pursuant to their agreement, but, on the contrary, so negligently and carelessly conducted and so misbehaved in respect to the same, in their calling as carriers, (p) that they upon appeal, simply on the ground the decline in the market price during that the delay was not owing to the his delay. See cases there cited, and negligence of the carriers ; and the compare Scovill v. GriflBth, 2 Kern., court declined to discuss the question 409. of damages (2 X«r!!., 245). But in (o) Seenotes to Forms Jf 0.181 smd the case of Kent x. The Hudson Kiver I^o. 183, ante. Railroad Company, 22 Barb., 278, (ji) Where there is no express where the carrier had undertaken to agreement as to time, actual negli- deliver on a certain day, he was held gence must be shown, to charge the liable in damages for the amount of carrier with damages for a delay in AGAINST BAILEES. 2S1 Special damage. Carriers of passengers. failed to deliver it until hours [or, days] after it was delivered to them as aforesaid. V. That by reason of said delay the milk Lecame sour and unmarketable, to the damage of this plaintiff , dollars. "Wherefore, &c. 7. Against Oommon C 185 , had exceeded the sum of dollars [or otherwise state the representations accord- ing to the fact.'] II. That this plaintiff, relying on said representations, pur- chased of defendant the [stock fixtures and] good-will of de- fendant, &nd paid him therefor the sum of dollars. III. That in truth, and as .defendant then well knew, said representations were false, and said business was not and never had been a profitable business, and the defendant had not realized any profits whatever from the same during the year ending the day of 185 ,\or otherwise state specifically the pa/rticulars in which the representations were false], (w) IV. That by reason of the premises, this plaintiff was mis- led, to his damage dollars. "Wherefore, &c. 3. Against Vendor of Chattels ; (x) for Fraudulently rejyre- senbing (y) theni to he his Property. No. 203. I. That on the day of , at , the defendant having offered to sell to this plaintiff a certain them with intent to defraud the respect to a sale of lands as much as plaintiff, as being, all of them, essen- in respect to personal property, tial facts constitutive of the cause of Orandall v. Bryan, 5 AbbotW Pr. S, action. They must be stated in the 162; Clark «. Baird, 5 Seld, 183; complaint ; and they should be sta- and see Van De Sande ». Hall, 13 ted with clearness and certainty. See Eoio. Pr. P., 438. also note (s), supra. {y) Compare with this form, the (jc) Particular items of loss or ex- form of complaint already given for a pense which the plaintiff seeks to re- false warranty of title; No. 176, ante. cover, should be specially stated. A complaint averring " that de- (x) Fraudulent representations, or fendant falsely pretended to be the deceit, accompanied by damage, con- owner*' of a certain chattel, and "that stitute a good ground of action in he fraudulently sold it to the plaintiff, DECEIT. 307 Against vendor, on false representation of title. horse, did, with intent to deceive and defraud this plaintiff", falsely and fraudulently represent to him that said horse was the property of defendant [o?\ otherwise state the representa- tions aecording to the fact']. II. That this plaintiiF, relying on said representations, pur- chased said horse of the defendant, and paid him therefor the sum of doUai-s. (z) III. That, in truth, and as defendant then well knew, said representations were false, and said horse was not the property of the defendant, but was the property of one [or, otherwise state speciJlcaUy the pa/rticulars in which the repre- sentations were false.] lY. That thereafter, the said sued this plaintiff to recover the value of said horse ; and although this plaintiff employed [one ,j a competent attorney and coun- sellor of the Supreme Court of this State, to defend said suit, and used due diligence in the defense of the same, (a) the said recovered a judgment (b) against tiiis plaintiff for the sum of dollars, which this plaintiff has since paid [or, which judgment still remains outstanding and in full force.] Y. That by reason of the premises, this plaintiff has be^ misled, to his damage dollars. Wherefore, &c. whereby he became liable," fixes the of the pendency of the suit as in Form gravamen of the action as fraud. No. 175, ante ; and see Blasdale v. (2 Johns. 560; 13 lb., 224.) Edick Babcock, IJbMs., 518. ■B. Crim, 10 Bari., 44:5. That ac- (h) The fact of recovery by the tions of this description are founded rightful owner against the vendee, is on the /rawi^, not on the contract, see conclusive against the fraudulent McDufBe «. Beddoe, V ^i/Z, 578. vendor. Barney ■». Dewey, IS JbAns., (s) The averment of price paid 224. Breach of warranty and deceit goes only to the amount of damages. cannot be joined. Sweet v. Ingerson, The action may be maintained, 12 ^om. Pr. i?., 831 ; and see Smith though there was no consideration, v. Hallock, 8 lb., 73 ; Hulse v. Thomp- Barney v. Dewey, 13 Johns., 224. son, 9 lb., 113 ; Colwell v. The N. Y. (a) Or, state notice to defendant & Erie Railroad Co., 9 lb., 312. 308 COMPLAINTS. In actions for deceit. 4r. For Fraudulently misrepresenting Value of Stock in a Cor- poration, agreed to he taTcen inpayment for Services. No. 204. I. That on the day of , 185 , at , the defendant having offered to this plaintiff that he would assign and transfer to him shares of the par value of dollars each, of the capital stock of the com- pany, a corporation incorporated under the laws of , and doing business in , upon consideration that this plaintiff should render services [by himself and his servants] in , [state briefly the nature of the services agreed to he rendered^, did, with intent to deceive and defraud this plaintiff, falsely and fraudulently represent (c) to him that said stock was of the market value of dollars, and that defendant had paid all charges, calls, and assessments laid or to be laid upon said shares by said company or the trustees or directors thereof [or, otherwise state the false representations according to ihfifact\ II. That this plaintiff, relying upon said representations, then and there agreed with the defendant to render [by him- self and his servants] all necessary services that should be required by the defendant in , to the value, at the mar- ket prices for such services, of dollars [or, otherwise state fully the nature and the value of the services agreed to he rendered^, and thereafter proceeded to, and did render [and cause to be rendered] said services, (d) [state facts showing how far the contract was performedhy plaintiff\ (c) The complaint must show Jewett, 11 How. Pr. S., 242 ; and what the representations were, and see note (p), supra. must aver that they were made with (d) A cause of action for false rep- intent to deceive and defraud. A resentation is not in general assign- complaint which fails to show these able so as to permit the assignee to things is bad on demurrer. Wells v. sue in his own name. Hyslop v. DECEIT. 309 For misrepresenting value of stock. For false return. m. That in truth, and as defendant then well knew, the said stock was not then of the market value of dollars, but, on the contrary, the said company was then insolvent, and the stock worthless and unsalable in the market ; and the de- fendant had not paid all charges, calls, and assessments laid upon said shares, but, on the contrary, a special assessment of per cent, on the par value of said shares had been theretofore duly imposed upon them by the directors of said company, which assessment had not been paid by defendant, but then remained [and still remains] a charge upon said shares [or otherwise state specifically the particulars in which the representations werefalse\. IV. That by reason of the premises, this plaintiff has been misled, to his damage dollars. Wherefore, &c. ■'5 6. Against Sheriffs for a False Return, (e) No. 205. 1. 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, (f ) Randall, 4 Duer, 660. But where action upon contract with one for A. and B. entered into a contract tort, or as heing an action for tort by with 0., to render services, and to be an assignee of the cause ; that as A. paid in stock, which 0. falsely I'ep- alone rendered the services, he alone resented as valuable ; and B. as- was injured by the false representa- signed his interest in the contract to tions, and the cause of action was in A., who thereupon rendered the ser- him alone. Atwill «. LeRoy, 4 Ah- vices, and on being tendered the totts' Pr. i?., 438. stock in payment refused to receive (e) For complaints for neglect to it, and brought an action for the return, to levy, to pay over, and for value of the services as upon con- an escape, see Forms No. 197 to No. tract, — it was held that his complaint 200, ante. setting forth these facts was not de- (/) See Form No. 197, note (u), murrible, either as joining a cause of ante. 310 COMPLAINTS. Against sheriff, for false return. II. That on the day of , 185 , this plaintiff du]y recovered a judgment in the Supreme Court in and for the county of , [or other court,'] against one M. N. for the sum of dollars, (g) III. That on the day of , , 185 , an execu- tion against the property of said M. N". (h) was duly issued upon said judgment by this plaintiff, and directed and then delivered to the defendant as such sheriff, of which execution and the indorsement thereon, the following is a copy [or, whereby the defendant was required, &c., stating effect as in Form JVb. 197.] IV. That [as this plaintiff is informed and believes] the de- fendant 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 value sufficient to satisfy said judgment [or, said judgment in part, to wit, to the amount of dollars], together with the defendants' fees and poundage. V. That notwithstanding the premises, and in violation of his duty as sheriff, he did not satisfy said judgment or any part thereof; but has falsely returned upon said execution to the clerk of county, 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 ; (i) to the damage of this plaintiff dollars. ( j) Wherefore, &c. This form is sustained by Bacon v. Oropsey, 3 Seld., 195. (g) In an action for a false return, erty of M. N. and f). P. and against the plaintiff must prove a valid judg- the separate property of 0. P." ment. McDonald v. Bunn, 3 De7i., (i) The complaint should show 45. that the return was false in a mate- (A) Or, if the judgment was recov- rial respect. Kidzie v. Sachrider, 14 ered against several joint debtors Johns., 195 ; and see Houghton v. upon service on part only of them, Swarthout, 1 Ben., 589. under section 136 of the Code, vary (j) See Form No. 197, note (y), as follows : " against the joint prop- and 2fb. 300, note (I), ante. DAMAGES FOR INJURIES. 311 Analysis of Section XVI. SECTION XVI. Complaints in Actions for Damages for Willful Injuries.^ I. — Injuries respecting personal property. 1. For conversion of chattels. 2. For the same ; by the assignee after conversion. 3. By vendor against fraudulent purchaser of goods, — for dam- age^or the conversion. 4. For unlawfully tating and carrying away plaintiff's goods. 5. For the same ; the plaintiff haying regained possession be- fore suit brought. 6. For conversion of a promissory note. 7. For conversion of a bond ; by the assignee after conversion. 8. Against sheriff, for selling on execution against a third party, chattels on which plaintiff held a mortgage, overdue. 9. For malicious injury to chattels. II. — Injuries respecting eeal property. 1. For entering plaintiff's house and seizing goods. 2. For diverting water from plaintifTs mill. 3. For cutting timber on plaintiffs land. 4. Against a railroad company, for wrongfully laying their track and running their trains unnecessarily near plain- tiff's house. III. — ^Injuries eespecting the pekson. 1. For assault and battery. 2. For the same ; shorter form. •3. For false imprisonment. 4. For malicious prosecution. 5. For libel, where the words are libelous on their face. 6. For the same, where the words are not libelous on their face. {k) As'to the rules of pleading ap- 11 Row. Pr. R. 408 ; Tappan v. Pow- plicable to complaints in actions for ers, 2 Hall, 277. conspiracy, see Forsyth v. Edmiston, 312 COMPLAINTS. Analysis of Section XVI. concluded. 1. For libel by signs. 8. For slander, where the words are actionable in themselves. 9. For slander respecting plaintiffs trade, with special damage. 10. For slander of title. 11. For enticing away plaintiff's wife. 12. For criminal conversation with plaintiff's wife. 13. For seduction. I. Injuries eespeoting personal propeety. 1. JFor Conversion of Chattels. (1) No. 206. I. That at tlie times hereinafter mentioned, this plaintiff was lawfully possessed, as of his own property, of certain goods and chattels \or, where the plaintiff was not in posses- sion, was entitled to the immediate possession of certain goods and chattels, the property of this plaintiff], (m) consisting of , (n) which were of the value of dollars, (o) II. That on the day of , 185 , at , the defendant then being in possession of said goods, unlaw- , (J) See note (q), infra. lute vested interest, was not sufficient (m) The plaintiif must show, not to maintain trover. Tuthill s.^Wheel- only a property either absolute or er, 6 5a7'&.,862. But it was, to main- special in the goods, but in addition, tain trespass de ionis asportatis. Hoyt that he was entitled to immediate i; Gelston, 13 Johns., 561 ; affirming possession. Unless both the right of S. 0., 13 75., 141. property and the right of possession in) Where the property consists of concur, the action will not lie. Thus many articles, they may conveniently it does not lie in favor of a lessor of be enumerated in a schedule or ex- chattels during the lessee's right of hibit annexed to the complaint, and possession (2 Selw. N. F., 1385, and referred to as such. It is not neces- cases cited, note x.) The special sary to state their, value severally, property must arise from possession. See Root i). Woodruff, 6 H^l, 418. Hotchkiss ii. McVickar, 12 Johns., (o) The averment of value is not 403; MoCurdy v. Brown, 1 Duer, traversable. Connoss v. Meir, 2 H. 101. Possession, without an abso- D. Smith 0. P. S., 314. DAMAGES FOR INJURIES. 313 Respecting personal property. Conversion. folly converted and disposed of the same to liis own use, (p) to this plaintiff's damage dollars, (q) Wherefore, &c. 2. For the Same / iy the Assignee after Conversion, (r) No. 207. I. That at the times hereinafter mentioned, one M. IST. was lawfiilly possessed, as of his own property, of certain goods and chattels [or, was entitled to the immediate possession of {p) It was held in Decker v. Mat- thews (2 Kern., 313), that this was a sufficient allegation of the conver- sion ; that it was not necessary to set out the manner in which the defend- ant converted the property. See also Hunter v. The Hudson River Iron and Machine Company, 20 Barb., 493. To the same eiFect is Esmay v. Fanning, 9 Barb., 176. ($') A claim for damages for con- version of personal property is incon- sistent with a claim for specific deliv- ery of it. Roberts v. Randall, 5 How. Pr. R., 327; Maxwell «. Far- nam, 7 i5., 236 ; and see Furness v. Brown, 8 lb., 59. See notes to com- plaints in actions of Claim and De- livery, section XVIL, post. (r) A claim for damages arising from the wrongful conversion of per- sonal property, is a chose in action that is assignable (The People i\ The Tioga 0. P., 19 Wend., 78), and under the Code the assignee may sue upon it in his own name. Such a claim will pass by a general assignment in trust for the payment of creditors. And a new demand by the assignee is unnecessary. McKee v. Judd, 2 Kern., 622. But until an actual con- version of the chattel, amounting to the destruction of its identity or a parting with the possession of it by the wrongdoer, the owner may assign his title to the cliatiel instead of his claim to damages, and the assignee may either proceed as owner in an action of claim and delivery, or to recover damages for its detention. But it has been held in the New York Common Pleas, that in the latter case he should aver a demand after the assignment. Howell «. Kroose, 2 Abbott's Pr. E., 167; but compare Davidson v, Donadi, 2 E. D. Smith's 0. P. B., 121. A bill of sale of goods in the pos- session of the bailee of the vendor, is not merely a transfer of a right of action, but of the goods themselves ; unless, indeed, the bailee has already converted the goods to his own use, or contests the title of the vendor. Heine®. Anderson, 2 Duer, 318; but see Howell v. Kroose, 2 Abbotts'' Pr. E; 167; compare Thurman ». Wells, 18 Barb., 500. S14 COMPLAINTS. In actions for injuries respecting personal property. certain goods and chattels, tlie property of the said M. N.] consisting of , which were of the value of dollars. II. That on the day of 185 , at , the defendant being then in possession of said goods, unlaw- fully converted and disposed of the same to his own use, to the damage of said M. N. dollars, (s) III. That on the day of 185 , said M. ]^. duly assigned (t) to this plaintiff his claim against the defend- ant for damages for said conversion. Wherefore, &c. 3. By Vendor against Fraudulent Purchaser of Goods,— for Damages for the Conversion, (u) No. 208. I. That on the day of 185 , at , in order to induce this plaintiff to sell to him the goods here- inafter mentioned, the defendant falsely and fraudulently represented to this plaintiff that he was worth a large sum, to wit, dollars, over and above all his just debts and liabil- ities ; whereas he was then insolvent, as he well knew. (s) See notes to preceding form. erty, although such assignment was (f) In an action to recover damages made after the conversion and during for the wrongful detention of per- the detention. Vogel v. Badcock, 1 sonal property, by the assignee before Abbotts' Pr. R, 176; and see Form the conversion, it is not necessary to -37b. 58, 7u>te (p), ante, 90. set forth the plaintiff's title in the (u) Whether in this case the com- complaint. A general averment of plaint, if in the ordinary form for ownership is sufficient, and under it conversion, might not be made more a bill of sale from the former owner definite and certain on motion, by may be given in evidence. Heine v. requiring the circumstances of the Anderson, 2 Duer, 318. It is not sale to be set forth, Query? Hunter necessary to allege the consideration v. The Hudson River Iron & Machine of the assignment by which the Company, 20 Barb., 493. plaintiff claims title to personal prop- DAMAGES FOR INJURIES. 315 Conversion. Taking and cariying away goods. II. That, induced solely by said representations, this plain- tiff agreed to sell to the defendant, upon credit, and on the day of 185 , at , delivered to him, the following goods [^here describe goods], of the value of dollars. III. That the defendant, having so obtained from the plain- tiff the possession of said goods, unlawfully converted and disposed of them to his own use, (v) to the damage of this plaintiff dollars. "Wherefore, &c. 4. For Unlawfully Taking and Carrying away Plaintifs Goods. No. 209. I. That on the day of 185 , at , the defendant unlawfully took from the possession of the plaintiff and carried away the following goods Sjiere describe or enumerate the goods'], the property of this plaintiff, of the value of dollars, (w) and still unlawfully detains the same from the plaintiff, to his damage dollars. "Wlierefore, &c. 6. For the Same ; the Plaintiff having Begained Possession before Suit brought, (x) No. 210. I. That on the day of 185 , at , the defendants unlawfully took from the possession of this («) In this case a demand and re- (x) That the plaintiff has regained fusal are not necessary to charge the possession, before suit brought, is no defendant with a conversion; nor defense to the action. Murray d. where the plaintiff has received a Burling, 10 Johns., 172. It only note in part payment is he bound to goes to the mitigation of damages, offer to return it before suit. Ladd v. Reynolds v. Shuler, 5 Gow., 323 ; Moore, 3 Sandf., 589. Connah v. HaU, 23 Wend., 462. {w) See notes to Form No. 206, ante, 812. 316 COMPLAINTS. In actions for injuries respecting personal property. plaintiif and carried away, ninety-six and one half tons of pig iron [or other property], the property of this plaintiff, of the value of dollars, and unlawfully detained the same from the plaintiff. ■ II. That by reason of such unlawful taking and detention of said property, the plaintiff was injured, to his damage dollars [or, was compelled (y) to pay, and did, on the day of 185 , at , pay to , the sum of dollars, to obtain the return of the same, and also the sum of dollars for recartage and reweigh- ing, and also sustained other loss, delays, and injury, to the damage of this plaintiff dollars, (z)] "Wherefore, &c. 6. I^or Conversion of a Promissory Note, (a) No. 211. I. That on the day of 18 j at , this plaintiff made his promissory note, of which the following is a copy, (b) \or, dated on that day, whereby he promised to (2/) See Form No. 46, note (n), ante, monly so called, issued by the 73 ; note (o), ante, 74, and note (h), Bank, one of the incorporated banks ante, 64. of this State, to wit, ten thousand of (z) See notes to Form No. 206, said bank notes, of the denomination ante. of one dollar.'' Dows ®. Bignall, Sill (a) Under such a complaint the c6 D. Supp., 407. In an action of plaintiff cannot recover the proceeds claim and delivery to recover pos- ofthe note as money had and received, session of a written instrument, it Andrews v. Bond, 16 Barl., 633. was held that the question as to (J) In trover for a bond or written whether the instrument was one instrument, the plaintiff cannot be which could be shown by extrin- held to an exact description, but he sic proof to be of any value, was a should name the parties to it (Pier- question of law; and a copy of the son v. Townsend, 2 Hill, 550), and instrument being set out in or an- his declaration should show that it nexed to the complaint, the question was an instrument in writing. It. must be raised by demurrer, not by Bank notes may be described as motion. Knehue «. Williams, 1 Duer, follows : — " Certain bank notes com- 597. DAMAGES FOR INJURIES. 317 Conversion of notes and otKer written instruments. pay to the order of M. N., months from date, the sum of dollars (c)], which note was made by this plaintiff without consideration, and for the accommodation of said M. N., and was made and then and there delivered to the said M. N. for the special purpose and upon the special agreement between this plaintiff and said M. N. that it should be offered by said M. N. to the Bank for discount, and the proceeds thereof, if any, should be applied by said M. N. to the payment of a certain other note theretofore made by this plaintiff for the accommodation of said M. N., dated, &c. \_descrihe note], and that otherwise it should be returned to this plaintiff. II. That [as this plaintiff is informed and believes] said first mentioned note was thereafter offered by said M. IST. to the Bank for discount, who refused to discount the same, and returned it to the said'M. N., who thereupon placed said note in a safe in his office, whereupon this plaintiff became entitled to the possession thereof [or state other cir- cumstances showing failure in the intended appropriation of the note, as the fact loos']. in. That, as this plaintiff is informed and believes, there- after, but before the maturity of the note, the defendant, "W. X., without the knowledge or consent of this plaintiff or of M. N., unlawfully took said note from the said safe, and deliv- ered it to the defendant, Y. Z., and that the defendants there- upon wrongfully converted and disposed of said note to their own use, to the damage of this plaintiff dollars, (d) Wherefore, &c. This form is supported by Decker v. Mathews, 2 Kernan, 313 ; S. C, 5 Sandf, 439, and cases there cited. (c) If the plaintiff cannot state the {d) The amount of the note is exact amount of the note converted, prima facie the measure of damages. he may state it as " of great value, Ingalls e. Lord, 1 Cow., 240 ; Decker to wit, the value of dollars." v. Matthews, 5 Sandf., 439. Bissel V. Drake, 19 Johns., 66. 318 COMPLAINTS. In actions for injui'ies respecting personal property. 7. For Conversion of a Bond; hy the Assignee after Conver- sion, (e) No. 212. I. That in or atout the month of August, 1851, at the city of New York, one M. N., being the owner of a certain Texas Eond, a true copy of which is hereunto annexed, (f) by his agent, at the request of the defendant, deposited with him the said Texas Bond, for the purpose of enabling the defendant to ascertain the vahie thereof, upon the agreement of the defend- ant with said M. N. that on ascertaining the value thereof, he would either purchase the same from the said M. N., and pay him the value thereof, or would return the same to him upon demand. II. That after the defendant had had a reasonable time for ascertaining the value thereof, to wit, on the day of 185 , at , said M. N. duly demanded from the defendant the said bond, or the value thereof; but the defendant, though admitting that it was in his custody or under his control, refused either to return it or to pay the value thereof to the said M. N., to his damage four thousand six hundred and forty-five dollars and sixty-four cents. III. And this plaintiff further shows, that on the day of 185 , at , the said M. N. duly assigned (g) to this plaintiff the said Texas bond, together with all his right of action against the defendant, or against any other person whomsoever, to recover the value of said bond or the possession thereof. IV. That the value of said bond, at the time of the com- mencement of this action, was four thousand nine hundred and eighty yVo dollars. Wherefore, &c. (e) See notes to Form No. 207, {g) See note (i), supra, ante. (/) See notes to the preceding form. DAMAGES FOR INJURIES. 319 Respecting personal property. 8. Against Sheriff for selling on execution against a third party (h) Chattels on which Plaintiff held a Mortgage over- due, (i) No. 213. SuPEEioE Court of the City of New York. Calvin E. Hull against Thomas Carnley, Sheriff ( j) of the City and County of New York, and Joseph H. Colton. The complaint of the plaintiff shows to this court : I. That on or about the 14:th day of August, 1850, one Francis Michelin signed, sealed, executed, and delivered to the plaintiff a chattel mortgage [of which a copy is hereto an- nexed (k)] ; that the property mentioned and described in said (A) For the substance of the ne- cessary averments in a complaint by a vendor against a sheriflf for selling on execution against the vendee goods which he had obtained by fraudulent representations, see Marsh ■0. Backus, 16 Barl., 484. (i) This is, in substance, the amended complaint in Hull v. Carn- ley, 1 Ablotts' Pr. R, 168 ; modi- fied by the addition of an averment that the mortgage was overdue. The New York Superior Court have re- cently held that the sheriff is liable to the mortgagee for selling without giving notice of his mortgage, al- though it was not due, where the ar- ticles mortgaged were of a nature not to be followed by the mortgagee, e. g , segars, wines, brandies, and the fur- niture of a restaurant ; and were sold, not in bulk, but in small lots to suit purchasers. Goelet v. Assler, not yet reported ; and see Carpenter v. Town, Eill & D. Supp., 72. (J) When a sheriff is liable for the trespass or misfeasance of his deputy, both may be sued jointly for such wrongful act. Waterbury v. Wester- velt, 5 Seld., 598. King v. Orser, 4 Duer, 481 ; and see The People «. Schuyler, 4 Oomst., 173. (Jc) That it is the better course to annex a copy of the mortgage in such a case, see Fairbanks v. Bloomfleld, 2 Duer, 349. 320 COMPLAINTS. Against Sheriff for Belling plaintiff's goods. mortgage, and more particularly mentioned and described in a schedule annexed to and forming part of said mortgage, con- sisted of three certain lithographic presses and fourteen litho- graphic stones, of the value, taken together, of the sum of $600 or tbereaboiits ; that said mortgage was made in good faith, and without intent to defraud creditors or purchasers, and was given to secure the payment to the plaintiff of the sum of two hundred and thirty dollars, with interest from the date of said mortgage ; which said sum of two hundred and thirty dollars was loaned by the plaintiif to said Michelin on or before the said 14th day of August, 1850, and for which said sum, the said Michelin was then justly indebted to the plaintiff. II. That the said Michelin is by trade or occupation, a lith- ographer, 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 livelihood ; and that the said property so mortgaged was used by the said Michelin in the course of his said business or occupation, and was essential and requisite to him in his said business or occu- pation ; and that, said property was left and remained with the said Michelin, to enable him to prosecute his said busi- ness. III. That on or about the l^th day of August, 1850, a true copy of the said mortgage was filed at the office of the clerk of the County of Kings, in this State, in which said County, at the date of said mortgage, the said Michelin resided. lY. That on the day of , 185 , and before the levy and sale hereinafter mentioned, • said sum of $230, with interest, became due, pursuant to the terms of the mort- gage [or if on demand, the said sum of $230, with interest, was duly demanded from the said Michelin by this plaintiff], but said Michelin failed to pay the same ; and thereupon, pur- suant to said mortgage, the plaintiff became the owner of said property, and entitled to the possession and control of the same. (1) (Q This averment is not contained It was there merely alleged that the in the complaint in Hull v. Carnley. amount was due at ^he commence- DAMAGES FOR INJURIES. 321 Conversion of Chattels. V. And this plaintiif further shows, on information and belief, that thereafter and on or about the 28th day of Septem- ber, 1850, Joseph H. Colton, one of the above defendants, recovered, in the Conrt of Common Pleas for this county, judg- ment for the sum of $488 46 against the said Francis Michelin ; that on or about the same day, an execution thereon, in favor of the said Oolton, was issued to the Sheriff of the city and county of IS'ew York, against the property of the said Miche- lin ; that on the 25th day of October, 1850, the 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 this plaintiff claimed the property therein mentioned. YI. That regardless of said mortgage, and wrongfully, on or about the 8th day of l!fovember, 1850, the said sheriff, un- der said execution, proceeded to sell, and then did sell, or cause to be sold, all of the said presses and stones mentioned and described in said mortgage and schedule ; and on or about the 9th day of December, 1850, returned said execution sat- isfied. YII. And the plaintiff further shows, on information and belief, that the said Joseph H. Colton, on or before the said 8th day of November, directed the said sheriff to proceed and make levy upon said presses and stones, without regard to said mortgage, and that the said Colton duly indemnified the said sheriff 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, (m) VIII. That since said 9th day of December, he has de- manded of said sheriff the goods and property mentioned and described in said moi"tgage and schedule, and that said sheriff ment of the action ; and it was held (m) As to the liability of the attor- that the defendants were not liable, ney who communicated the direc- inasmuch as" the plaintiff had not, at tions of his client to levy, see Fordu. the time of the levy and sale, an im- Wilhams, 3 Kern., 577. mediate right to the possession. * 21 322 COMPLAINTS. Injuries respecting personal property. Bespecting real property. refused to deliver tlie same to plaintiff, and that thereupoa plaintiff demanded of the said sheriff the proceeds or value of said property, and that said sheriff refused to pay over the same, or any part thereof. IX. That by reason of the premises the plaintiff has been injured, to his damage dollars. Wherefore, &c. 9, Far MaUoious Injury to Chattels, (n) No. 214. That on the day of , 185 , at , the defendant willfully and maliciously intending to injure this plaintiff, cut, broke, mutilated, and defaced \or state other injury], certain furniture \or other chattels'] consisting of , the property of this plaintiff, of the value of dollars ; and greatly injured the same, so that the plaintiff was obliged to expend the sum of dollars in repairing the same \or, and wholly destroyed the same] to his damage dollars. "Wherefore, &c. n. Injuries eespbcting Keal Pkopebtt. (o) 1. For Entermg Plamtiff's House and Seizing Goods. No. 215. I. That on the day of , 185 , the defend- ant, "W". X., at the instigation and request of the defendant, T. Z., and being by him employed thereto, and assisted («) See also Form 217, post. in the same complaint ; for the rea- (o) The causes of action formerly son that to entitle the plaintiiF to re- known as trespass and ejectment, and cover for the trespass, he must show trespass qutBre clausum /regit, as to himself to have been in possession the same premises, cannot be united when the tortious acts were commit- DAMAGES FOR INJURIES. 323 Respecting real property. therein, (p) broke and entered the dwelling-house of this plain- tiff, situated at , and broke and injured the walls and doors thereof [or, other injury according to thefacf\, and took and carried away , the property of this plaintiff, of the Talue of dollars, and converted and disposed of said goods to the use of said "W. X. and T. Z. \or, cut, broke, defaced, and injured, cfec, as in Form No. 214], to the damage of this plaintiff dollars. Wherefore, &c. 2. For Diverting Water from Plaintiff ''s Mill. No. 216. I. That at the times hereinafter' mentioned this plaintiff was lawfully possessed (q) \or, if not in possession, lawfully ted, and that he had regained the possession at the time of the com- mencement of the action ; while to entitle him to maintain his action for the ouster, and to recover the possession, he must show that the defendant had possession when the action was instituted. Where these claims are united, the plaintiff may properly be required upon the trial to elect upon which of them he will proceed. Budd n. Bingham, 18 Barb., 494 ; and see Ford v. Duncan, 19 /J., 560. In an action in the County Court (before the amendment of 1851 in the Supreme Court), upon discontin- uance on question of title in Justices' Court, the summons or complaint, or perhaps both, should make allusion to the case before the justice by some appropriate averment. Koyce v. Brown, 3 Sow. Pr. B., 391. See Coan V. Osgood, 15 BarK, 583. It seems the complaint need not show that the justice had jurisdiction. The Clyde and Rose Plank Eoad v. Ba- ker, 22 Barl., 823, affirming S. C, 12 How. Pr. R, an ; see also Kid- dle v. DeGroot, 1 Code R, N.S., 272. That a person who, instead of passing along the sidewalk of a village street in front of plaintiff^s house, stops upon it and remains there to use abusive language toward him, is lia- ble to him as a trespasser; and for the averments in a complaint in such a case — see Adams «. Rivers, 11 Barb., 390. For a complaint for undermin- ing the party-wall of plaintiffs house, see Eno «. Del Vechio, 4 Buer, 63. (p) See F&rm No.. 81, note (x), ante, 123 ; Ives v. Humphreys, 1 R B. Smith's C. P. R, 196. {q) That possession by the tenant is a possession by the plaintiff suf- 324 COMPLAINTS. For diverting water from plaintiff's mill. seised in their own demesne as of fee] of a water-mill, called a grist-mill [or, saw-mill, or otherwise], situated upon the Brook, at , [state location definitely, or state name of miU]. II. That this plaintiff then had a right to use and employ the water of said brook, and to have the same flow to and through his mill in a convenient and customary manner, according to the natural and usual flow of said brook, and without the hindrance of the defendant or any other person.(r) III. That on the day of 185 , and on various days between that time and the day of 185 , the defendant [not being ignorant of the premises, but intending to injure the plaintiff] wrongfully dug up and removed the banks of said brook above said mill, and for days diverted the water [or, a part of the water] thereof from ninning to and through said mill [or, built a dam across said brook above said mill, and for days stopped the water, c&c, as above]. lY. That, by reason of such acts of the defendant, the plaintiff's mill, which was able and before was used to grind bushels each day, thereafter and during the time aforesaid could only grind bushels, to the damage of this plaintiff dollars. "Wherefore, &c. ficient to support this averment, see 910; Sheers ti. Wood, 7 Moore, 345. Sumner i3. Tileston, Y Pick., 108. It If the plaintiff was only entitled to is enough to show possession at the surplus water, his complaint must time of the injury. VowlesB. Miller, allege that surplus water existed or 3 Taunt, 137. would have existed but for the de- (r) The amount of water to which fendants' acts. Wilbur v. Brown, 31 the plaintiff was entitled, should be Ben., 356. As to whether the com- aileged according to the fact. Wil- plaint should allege the facts going bur V. Brown, 3 Den., 356. As to to show the right of the plaintiff, the sufficiency of this averment, see compare Form No. 237, note (a), Twiss V. Baldwin, 9 Conn., 291 ; Wil- post. jiams V. Moreland, 2 Barnw. & C, DAMAGES FOR INJURIES. 325 Respecting real property. 3. For Cutting Timber on Plaintiff's Land. No. 217. That on the day of 185 , the defendant unlawfully broke and entered the close of the defendant, (s) situated at , and there cut down and carried away the trees and timber of this plaintiff, and converted and dis- posed of the same to his own use [or, with horses and cattle or otherwise trod down and destroyed the grass and crops of this plaintiff], to his damage dollars. "Wherefore, &c. (s) It seems that mere possession, if peaceable and exclusive, is suffi- cient to enable the plaintiff to main- tain the action. Palmer ». Aldridge, 16 Barb., 131, and cases there cited. No action will lie for a wrongful entry upon land and felling wood and timber thereon, where the land was at the time in the actual possession of the defendant. At common law there was no right of action, for in- juries to land, by an owner out of possession. If he had partially part- ed with the possession and reserved some possessory rights, he could then sustain an action for their invasion. And so, too, one wrongfully dispos- sessed might, on being reinstated, recover for intermediate injuries ; but that was on the principle that the restored possession related back to the time of the actual ouster. And as the law gave no right of action to an owner out of the possession of land for injuries to it, previous to the adoption of the Code, it gives none now. The Code does not constitute any new cause of action. Frost v. Duncan, 19 Barb., 560. 326 COMPLAINTS. For ■willful injuries. 4. Against a -Railroad Company, for Wrongfully Laying their Track and Running their Trains Unnecessarily Near Plaintiff'' s House, (t) No. 218. New York SgpEEioR Couet : James Moore against The Hudson River Railroad Compa- ny and The Mayor, Aldermen, and Commonalty of the City of New York. The complaint of this plaintiff shows to this Court : — I. That he is the owner in fee fu) of the lot on the south- west corner of Tenth Avenue and Thirtieth Street, in the city of New York, on which he has erected a four-story brick dwelling house intended for a hotel. II. That the Hudson River Railroad Company, a corpora- (i) For another form of complaint for a nuisancej see complaints in Ac- tions FOR Injunctions, ^osi. (tt) An action under the 454th sec- tion of the Code, to abate a nuisance and to recover damages for its erec- tion and continuancie, is a substitute for the statute remedy by writ of nuisance ; and the plaintiff must aver, in his complaint, all that 'vras before requisite to sustain an action of that nature. Tor an injury to the plaintiff's land by the erection of a nuisance upon land in the possession of the defend- ants, the complaint should allege that the plaintiff was the owner of the freehold affected by the nuisance, at the time the acts complained of were committed ; and that the defendants were tenants of the freehold of the land whereon the nuisance was erect- ed. Ellsworth V. Putnam, 16 Barb., 565. DAMAGES FOR INJURIES. 327 Ecspecting real property. tion created by the Legislature of this State, by an act enti- tled, " An Act to authorize the construction of a railroad from New York to Albany," passed May 12th, 1846, and various acts amending the same ; and keeping an office for the trans- action of business within the city of New York, have laid down their track through the Tenth Avenue, from its southerly end to Thirtieth Street, and thence around the said southwest corner, and in a line nearly direct to the intersection of Eleventh Avenue and Thirty-first Street. III. That the said Company have laid their track so near the said southwest corner, that when the cars pass, they pro- ject over the curb and sidewalk about eighteen inches. ly. That passing so near the corner is entirely unnecessary, and without any right on the part of the said Company, and is a serious annoyance and damage to the plaintiff. V. That in laying down their track, the said Company were bound to keep as closely as possible to the middle of the street; and that they might have so laid it as that their cars would not overreach any part of the curb or sidewalk, but keep at a considerable distance therefrom, as they were under a legal obligation to do. VI. That the said Company have been so running for two years and upwards, during which time they have been repeat- edly applied to by the plaintiff to remove their track to a greater distance, and have often promised to do so, but have never jet done it. VII. That by reason of the said track being so near the corner, the plaintiff cannot obtain so great a rent for his said building as he might otherwise ; and he is in other respects injured in the employment and value of the property. VIII. That the said track lying so near the corner, with the running of cars thereon, is a private nuisance, specially injurious to the plaintiff, and to certain other persons having occasion to do business at his said house. IX. That the only permission or authority the defendants ever had to lay the track in the streets of the city of New 328 COMPLAINTS. For willful injuries. York, was that contained in the ordinance of the Common Council, of which a copy is hereto annexed, marked " A ;" that in laying their track at the corner above-mentioned, the defendants have not conformed to the said ordinance; and that on the 11th of August, 1851, the Common Council of the city of New York duly passed another ordinance, of which a copy is hereto annexed, marked " B," of which the defendants then and there had notice, but have hitherto refused to obey it, or to change their said track. Wherefore, the plaintiff demands judgment,' that the de- fendants remove their said track to a greater distance from the corner, and to the center of the avenue, and that they pay the plaintiff the damage which he has sustained by its being where it now is, which the plaintiff claims to the amount of five thousand dollars. This complaint is taken from an actual case, not reported. III. InJUEIES EESPEOTmG- THE PeESON. 1. Ffff Assault cmd Battery, (v) No. 219. I. That on the day of 185 , at , the defendant violently assaulted this plaintiff and struck him in the face and breast several violent blows, and aimed at him a gun and threatened to shoot him, whereby he put this plain- tiff in fear for his life ; and maliciously caused a certain dog then in his possession to bite this plaintiff (w) [or otherwise describe the violence used, and its consequences^, to this plain- tiff's damage dollars. Wherefore, &c. («) See Form No. 225, note (v), tendance, or was prevented from infra. attending to his business, state dam- (w) If the plaintiff was made sick age as in Forms No. 198 and 196, and obliged to procure medical at- ante. DAMAGES FOR INJURIES. 329 Respecting the person. 2. Bor the 8ame^ Shorter Form.(jC) No. 220. That on the day of 185 , at , the defendaut assaulted and beat the plaintiff, to his damage dollars. Wherefore, &c. 3. For False Imprisonment. No. 221. I. That at , on the day of , the defendant maliciously and with intent to injure this plain- tiff, did, by force [compel this plaintiff to go with him to a certain police office, or, to the county jail, or the lihe, there situate, and there(y)], imprison this plaintiff, and then and there detain him restrained of his liberty, for the space of hours, without reasonable cause and without any right or authority so to do and against the will of this plaintiff, to the damage of this plaintiff dollars. Wherefare, &c. (x) This is substantially the form of complaint recommended for this action by the Codifiers. {First Re- port, 266.) It seems to be sufficient, though the authorities recommend the forms in use before the Code, as being, with proper abridgment, suit- able to be employed at the present day. Shaw v. Jayne, 4 Eow. Pr. R, 119 ; Root V. Foster, 9 Row. Pr. R, 87; 2 Wliitt. Pr., 417; see also Gil- bert «. Rounds, 14 Eow. Pr. P., 46 ; Lane v. Gilbert, 9 Sow. Pr. R., 150. To meet that view we have inserted Form 219, supra. (y) That the above form, with the words in brackets inserted, is suffici- ent where the imprisonment was had under pretense of legal process ; and that the particular circumstances at- tendant on plaintiff's arrest should not be set out in detail in such case, see Shaw v. Jayne, 4 Row. Pr. R., 119. 330 COMPLAINTS, For willful injuries. 4. For Malicious Prosecution. No. 222. I. That on the day of 185 , at , the defendant, maliciously intending to injure this plaintiff in his good reputation, appeared before , Justice of the Peace of County \or, one of the Police Justices of said city], and without any probable cause whatsoever, charged this plaintiff, before said Justice, with Laving feloniously stolen a certain gold watch of the defendant, and maliciously and without probable cause, procured said Justice to grant a warrant for the arrest of this plaintiff upon the said charge. II. That the said Justice issued said warrant accordingly, and this plaintiff was arrested and imprisoned under the same for hours, and was obliged to, and actually did, give bail in the sum of dollars. III. That afterwards, and on the day of , this plaintiff having been examined before the said Justice for the said supposed crime, the said Justice adjudged that this plaintiff was not guilty thereof, and fully acquitted (Z) this plaintiff of the same; and that since that time the de- fendant hath not further prosecuted said complaint, but hath abandoned the same. [lY. That the said charge and the arrest of this plaintiff («) Or state trial of plaintiff by a convicted in the prosecution alleged jury, if that were the fact, and, his to have been malicious, is conclusive acquittal. In a conaplaint for mali- evidence of probable cause. And cious prosecution, the plaintiff's ac- where this fact appears by the decla- quittal must be alleged ; and an alle- ration, it is fatal to the suit. The gation that he has been discharged, is only exception to the rule, is the case not sufficient. Morgan «. Hughes, 2 in which the plaintiff sets up that his T. J?., 225, Edwards, J., Supreme Ct. conviction was fraudulently procured Gen. T., 1849; Bacon ■». Townsend, by the defendant, by means which 2 Code £., 51. prevented the plaintiff from setting In an action for malicious prosecu- up his defense. Miller v. Deere, 2 tion, the fact that the plaintiff was AUoits' Fr. S., 1. DAMAGES FOR INJURIES. 3 8 Respecting the person. thereunder were extensively published in several public news- papers, among others the , as this plaintiff beb eves through the procuration of the defendant, (a)] V. That by means of the premises this plaintiff has been injured, to his damage dollars. Wherefore, &c. 5. F