Note to subdivision 1.

a. As to name of court.-If no court is named either in the complaint or in the summons, no action can be said to be commenced in any court, and semble, the summons and complaint are nullities (Ward v. Stringham, 1 Code Rep. 118); and under such circumstances the supreme court will entertain a motion to set aside such a summons and complaint; but where the name of the court is inserted in the summons, but not in the complaint, the court will disregard the omission, and hold the complaint sufficient (Van Namee v. Peoble, 9 How. 198; Merrill v. Grinnell, 10 id. 32; Van Benthuysen V. Stevens, 14 id. 70).

b. As to name of county of trial.—The place of trial should be stated in the complaint. That determines where motions are to be made, as well as where the trial is to be had (Merrill v. Grinnell, 10 How. 32; Hotchkiss v. Crocker, 15 id. 336). The statement of the name of the county in the summons does not necessarily show that it is placed there to indicate where the place of trial is to be; and the plaintiff can indicate any county as the place of trial, notwithstanding the name of a county may be mentioned in the summons (id.) Where the complaint wholly omits to mention the name of the county in which the plaintiff desires the trial to be had, it is irregular (id.); and the irregularity is not cured by reference to the summons (id.) Where in an action commenced by service of a summons, without any copy of the complaint, the summons was entitled "Supreme Court, New York," and stated that the complaint would "be filed in the office of the clerk of the city and county of New York," the defendant demanded a copy of the complaint, one was served, entitled "New York Supreme Court," indorsed "Supreme Court, city and county of New York," but did not otherwise indicate the name of any county in which the plaintiff desired the trial should be had,— held that the complaint was irregular for not stating any place of trial (Davison v. Powell, 13 How. 288). But where the action is in a court of local jurisdiction, as in the New York common pleas, as the trial can only be had in one county (namely New York), the complaint would be sufficient without stating the name of the county in which the paintiff desires the trial to be (Leopold v. Poppenheimer, 1 Code Rep. 39).

c. A defect in the complaint in this respect may be amended (Hotchkiss v. Crocker, 15 How. 333; Davison v. Powell, 13 id. 288). The defect is not waived by defendant omitting to raise the objection until after his time to answer has expired, nor by his obtaining orders extending the time to answer (Merrill v. Grinnell, 10 How. 32). The proper course for the defendant, to take advantage of the omission, is by motion to set aside the complaint for irregularity (id.; Hall v. Huntley 1 Code Rep. N. S. 21, n). It is not a defect for which he can demur (Dorman v. Kellam, 14 How. 184; 4 Abb. 202).

d. The motion to set aside for such an irregularity may be made in a judicial district where the action is in fact triable (Hotchkiss v. Crocker, 15 How. 336); thus, where the plaintiff resided in Cayuga county, and the defendants in Broome county (the nature of the action is not stated in the report), the complaint not stating any county for trial, the defendant moved at a special term in Tioga county to set aside the complaint,-held that the action was triable either in the county of Cayuga or Broome; and as the plaintiff had not indicated in which he desired it to be, the motion might properly be made either in the district of the plaintiff's or of the defendant's residence (id.)

e. Names of the parties.-Properly, the names of all the parties, plaintiff and defendant, should be set forth in the title. If, however, only some of the parties are named in the title, but are all correctly named in the body of the complaint, it will be sufficient (Hill v. Thacter, 3 How. 407); and after the names of the parties are once stated, it is sufficient afterwards to designate them as "the plaintiff" and "the defendant" (Davison v. Savage, 6 Taunt. 121; Stephenson v. Hunter, id. 406; see Stanley v. Chappell, 8 Cow. 235).

Except in the cases provided for by § 175, the names of the parties should be correctly stated; if they be not, the remedy is not by motion (see ante, p. 125, b). A mere misnomer is only a formal error which may be amended before or at the trial, or afterwards (Barnes v. Perine, 9 Barb. 202; Traver v. Eighth Ave. R. R. Co. 6 Abb. N. S. 46; 3 Trans. App. 203; B'k of Havana v. McGee, 20 N. Y. 362). Where the true name of the defendant was Dean 8. Manley, and he was described in the summons and complaint, served together, as Dennis S. Manley, it was held that the proceedings were irregular; but as the notice of motion was subscribed "William H. Andrews, attorney for defendant," it was a general appearance in the action, and therefore a waiver of the irregularity (Dole v. Manley, 11 How. 138; Baxter v. Arnold, 9 How. 445). In Walker v. Parkins (9 Jur. 665; 14 Law Jour. Rep. 214 Q. B. ; 1 New Prac. Cas. 199; 2 D. & L. 982) the plaintiff was described in the writ as "Walker & Co." A motion to set aside the writ for not setting out the names of the plaintiffs was denied, and held that "non constat," but Walker & Co. meant the plaintiff alone, and no more than one person. Where the action was brought by a woman in her maiden name,-held no ground for dismissing the complaint (Traver v. Eighth Ave. R. R. Co. supra).

a. It is presumed that in stating the names of the parties it is not necessary to add any description, as to say, A. B., executor, &c.; and if such description is inserted, it is mere surplusage, and does not present a fact which can be traversed (Sheldon v. Hoy, 11 How. 15; Merritt v. Seamen, 6 N. Y. 168); but saying A. B., as executor, &c., is very different from merely stating A. B., executor, &c. To say as executor, &c., is alleging the character in which the plaintiff sues, as to which see infra.

b. Character in which plaintiff sues should be stated.—A plaintiff may sue either as an individual for his individual benefit and as the real party in interest, and in that capacity as the original party, to whom the cause of action accrued, or as the assignee of the party to whom the action accrued. Or the plaintiff may be suing in a representative character, as administrator, committee, executor, guardian, public officer, receiver, or trustee. Where nothing appears to the contrary, it is presumed that the plaintiff has legal capacity to sue, is the real party in interest, suing as an individual for his individual benefit, and, therefore, in such a case, nothing need be said in the complaint as to the character in which the plaintiff is suing; and it being shown, by the facts stated, that a cause of action accrued to the plaintiff, it is presumed that the cause of action continues in him, and he need not make any allegation as to that. A plaintiff who describes himself as "A. B., president," &c., or "A. B., administrator of," &c., or "A. B, assignee of," &c., without further indicating the character in which he sues, will be taken to be suing as an individual (Sheldon v. Hoy, 11 How. 12; Root v. Price, 22 id. 372; Butterfield v. Macomber, id. 150; Merritt v. Seaman, 6 N. Y. 168; Forrest v. Mayor of N. Y. 13 Abb. 350; Scrantom v. Farmers' B'k of Rochester, 33 Barb. 527; Hallett v. Harrower, id. 537). The addition of the word " vivor" to the name of a defendant sued upon a joint and several obligation is mere surplusage, the promise being laid as an individual one, the action is to be deemed one on the several contract (Bogert v. Vermilya, 10 N. Y. 447). As to the effect of the word "surety” or “security" added to the name of an endorser of a note (Bradford v. Cory, 5 Barb. 461). The addition of "junior" to a name is a mere description, and is no part of the name. Neither is the middle letter between the Christian and surname any part of the name; the law knows only one Christian name (The People v. Cook, 14 Barb. 261). Where the complaint alleged that "the plaintiff is sheriff of the city and county of New York," it was held a sufficient allegation of his official character (Kelly v. Breusing, 33 Barb. 123). If the plaintiff has not the capacity to sue, as being an infant, or if he has divested himself of the right of action which had accrued to him, it is matter of defense coming from the defendant. But if it appears that the cause of action accrued to some other body than the plaintiff, then the defendant has a right to be informed by the complaint how the plaintiff became the owner of the demand, whether by purchase, operation of

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law, or how otherwise; and the facts should be stated by which the plaintiff became such owner (Russel v. Clapp, 7 Barb. 482; Bentley v. Jones, 4 How. 202; M Murray v. Thomas, 5 id. 14; Parker v. Totten, 10 id. 233; Thomas v. Desmond, 12 id. 321; Freeman v. Fulton Fire Ins. Co. 14 Abb. 407). In other words, the plaintiff must show title (see post, Plaintiff must show title). The capacity of the plaintiff to sue is independent of the cause of action (B'k of Lowville v. Edwards, 11 How. 216; Johnson v. Kemp, 11 id. 186; B'k of Havana v. Wickham, 16 id. 97).

a. Where the plaintiff is an assignee, the complaint should allege the fact of the assignment. In so doing, he need not state that there was any consideration for the assignment, nor whether it was in writing or by parol (Vogel v. Babcock, 1 Abb. 177; Horner v. Wood, 15 Barb. 372; Martin v. Kanouse, 2 Abb. 331; and see Gregory v. Freeman, 2 Zab. R. 405; Artcher v. Zeh, 6 Hill, 200; see ante, pp. 95, k, 94, d). And if the assignment be by a corporation and the transfer is prima facie lawful, the complaint need not aver that the directors were authorized to make the assignment (Nelson v. Eaton, 16 Abb. 113); where the complaint showed on its face that another person that the plaintiff was the owner of the subject of the action, it was held insufficient (Palmer v. Smedley, 6 Abb. 205). An allegation “that Cobb duly assigned and transferred all his interest in the contract to the plaintiff Grant, and the plaintiff Ludlam became interested by a sale and assignment to him of a part of Grant's interest,' was held sufficient (Horner v. Wood, supra; Fowler v. N. Y. Indem. Ins. Co. 23 Barb. 151; Morange v. Mudge, 6 Abb. 243); and an allegation that A. sold, and transferred, and set over to the plaintiff the said judgment, will be construed to mean that the judgment, or whatever may have been the subjectmatter, was assigned absolutely. If the assignment was subject to any material condition affecting the plaintiff's right to recover, it is matter to come from the defendant by way of defense (Martin v. Kanouse, 2 Abb. 331); and where the complaint showed that the alleged cause of action accrued to a third party, and the only manner in which the plaintiff showed title in himself was an allegation that "the plaintiff is now the sole owner of the said demand" on demurrer (the report does not say on what ground)-it was held that the allegation was of a conclusion of law and not of a fact, and showed no title in the plaintiff (Thomas v. Desmond, 12 How. 321). An allegation that plaintiff became the owner of the cause of action by purchase was held sufficient allegation of title as assignee of the party to whom the cause of action accrued (Prindle v. Caruthers, 15 N. Y. 427).

b. Executor or administrator.-In an action by an executor or administrator, as such, the complaint should, by some appropriate averment, show that the action is by the party in his representative character, and not as an individual. It is not necessary that he should make profert of the letters testamentary or of administration; it is sufficient if he aver that he sustains the character either of executor or administrator, as the case may be; and if the averment is denied, he produces on the trial the letters granted to him as evidence of his title (Bright v. Currie, 5 Sand. 433; Wells v. Webster, 9 How. 251). Where the complaint alleged that "plaintiff is the executor of the last will and testament of J. W., deceased, and that he had been duly and legally authorized to act as such executor," and further stated that the defendant was indebted to the plaintiff as such executor, on demurrer that plaintiff had not capacity to sue, the complaint was held sufficient (Wells v. Webster, supra). In an action commenced prior to the code taking effect, it was held that merely describing the plaintiff in the commencement of the declaration, as "C. H. M., executor of the last will and testament of J. S. deceased, plaintiff," that being the only allegation indicating that the action was brought by the plaintiff in any other than his individual character, and followed by a statement of a cause of action accruing to himself personally, did not make the action one by the plaintiff as executor, so as to admit a defense of set-off against the plaintiff's testator, or to warrant a judgment against the plaintiff as executor, to be levied of the testator's goods in his hands (Merritt v. Seaman,

6 N. Y. 168; and see Renard v. Conselyeu, 4 Abb. 280). The word executor, &c, following the name of the plaintiff, was regarded only as descriptive of the person (id). Where in the title of a complaint the plaintiff was described "individually as well as "collector" it was said, although the title is part of the complaint, yet the allegations in the body of the complaint control the title (Christy v. Libby, 35 How. 124; and see Worden v. Worthington, 2 Barb. 368). A complaint commencing "A. B., administrator of the goods, &c., of C. D., deceased, plaintiff, complains, &c.," or A. B., president, &c., was insufficient to show that the plaintiff sued in a representative capacity, and there being nothing further in the complaint to indicate in what capacity the plaintiff sued, the action was to be regarded as brought by the plaintiff in his own right (Sheldon v. Hoy, 11 How. 12; Root v. Price, 22 How. 373; Butterfield v. Macomber, id. 150; Murray v. Hendrickson, 6 Abb. 96; 1 Bosw. 635; Hallett v. Harrower, 33 Barb. 537). The word as is essential, and cannot be replaced by any other word (Henshall v. Roberts, 5 East, 154). The fact that the plaintiff is administrator, and had been regularly appointed by the surrogate of some county in the State, is a material and traversable fact, and should be stated in such form as to tender an issue, and the complaint should contain a particular statement of the time and place of granting, and the functionary by whom administration was granted (Sheldon v. Hoy, 11 How. 12). So where a plaintiff, suing as administrator, alleged that he had been "duly appointed” administrator, without any fact as to when, or how, or by whom, he had been appointed, it was held insufficient (Beach v. King, 17 Wend. 197; Gillett v. Fairchild, 4 Denio, 80; White v. Joy, 13 N. Y. 80; Chautauque Co. B'k v. White, 6 N. Y. 236). And a complaint which alleged that the plaintiffs "have been duly appointed and qualified by the surrogate of the county of New York, to act as sole executors of D. F., deceased," was held insufficient (Forrest v. The Mayor of N. Y. 13 Abb. 350). But where the complaint stated the cause of action was due the plaintiff as executor, it was held sufficient to show the plaintiff sued in his representative character (Scrantom v. Farmers B'k of Rochester, 33 Barb. 527). See Duly, post.

a. The fact that the appointment is by a surrogate of this State is material to be stated; because the courts of this State cannot take notice of letters testamentary or of administration granted abroad, and they give no authority to sue here (Morrell v. Dickey, 1 Johns. Ch. R. 156; Williams v. Storrs, 6 id. 353; Campbell v. Tousey, 7 Cow. 68; Vroom v. Van Horn, 10 Paige, 550). For as a general rule that executors and administrators can sue or be sued as such only in the State in which they are appointed (Vermilyea v. Beatty 6 Barb. 429; Smith v. Webb, 1 id. 230; and see Sere v. Coit, 5 Abb. 482; Warren v. Eddy, 13 Abb 23; Gulick v. Gulick, 21 How. 22; Robins v. Wells, 26 How. 15; Averell v. Taylor, 5 How. 476; Campbell v. Tousey, 7 Cow. 64; McNamara v. Dwyer, 7 Paige, 239; Montalvan v. Clover, 32 Barb. 190). The place, i. e., the State or county in which an executor or administrator was appointed, is a material and traversable averment, and should be truly stated (Steph. Pl. 288; Rightmyer v. Raymond, 12 Wend. 51; Morgan v. Lyon, id. 265); and the time of appointment should be stated (see King v. Roxbrough, 2 Cr. & J. 418).

6. Plaintiff suing by guardian.-Where the plaintiff is an infant, suing by guardian, the complaint should contain an allegation of the appointment of the guardian by the court or a judge, and this should be stated in a traversable form (Hulbert v. Young, 13 How. 414); and an allegation commencing the complaint "Nathaniel Hulbert, an infant plaintiff, by Jesse Hulbert, his guardian, complains," &c., is not a sufficient statement (id.); where the statement was in that form, a demurrer on the ground that it appeared on the face of the complaint that the plaintiff had not legal capacity to sue was sustained at general term (id; see, however, Sere v. Coit, 5 Abb. 481; and see Grantman v. Thrall, 44 Barb. 173).

c. Public officer.-When an action is brought by public officers in their official character, and in the names of the individuals with the addition

of their name of office, the complaint should by proper averment show that the claim is made by the officer and not by the individual (Guthries v. Fisher, 3 Stark 151); and where, in an action by commissioners of highways to recover a penalty, the complaint was as follows:-Calvin H. Gould and John Sheldon, commissioners of highways of the town of Lisbon, against John Glass. The plaintiffs above-named complain of the above-named defendant, and say that on, &c., he wrongfully obstructed a certain highway at, &c., by, &c.,-answer a general denial,- -on the trial plaintiffs proved, they were the commissioners of highways, and the obstructions by defendant. Defendant moved for a nonsuit on the ground that plaintiffs had sued as individuals, and not in their official capacity, and as individuals had shown no right to recover. The motion was denied, and the plaintiffs had judgment. On appeal to the supreme court,-held that the motion for a nonsuit should have been granted for the reasons alleged (Gould v. Glass, 19 Barb 179).

a. Where the complaint was entitled S. S. S., Supervisor of the town of North Hempstead, against J. L., and commenced, "The complaint of the plaintiff above-named as supervisor as aforesaid, shows," defendant demurred on the ground that the complaint did not show plaintiff had legal capacity to sue, and it was contended that he did not allege he was the supervisor of the town of North Hempstead. The demurrer was overruled (Smith v. Levinus, 6 N. Y. 474). Where the complaint was entitled "F. H. & J., Commissioners of Highways," and commenced, "The plaintiffs, commissioners of highways, complain,"-held sufficient to show they sued as commissioners (Fowler v. Westervelt, 17 Abb. 59; 40 Barb. 374). A plea concluding, the plaintiff's "so being, and being duly nominated public officers, as aforesaid,"-held a sufficient averment that they were such public officers (Steward v Greaves, 2 Dowl. N. S. 405; 10 M. & W. 711; and see Davidson v. Bower, 5 Scott, N. R. 539).

b. Loan commissioners.—Suits by, Plumtree v. Dratt, 41 Barb. 333. c. Officer of joint-stock companies.—In an action by an officer of a joint-stock company, under the act of 1849, the complaint must allege that the company is a joint-stock company or association, consisting of more than seven stockholders or associates (Tiffany v. Williams, 10 Abb. 204).

d. Bank president.-One suing as president of a bank sufficiently indicates the character in which he sues by describing himself as A. B., President of, &c., naming the bank, and then alleging that he prosecutes for the benefit of said bank (Root v. Price, 22 How. 372).

e Trustee or agent.-One suing as trustee or agent should make a positive and issuable averment of his trust or agency in his complaint (Freeman v. Fulton Fire Ins. Co. 14 Abb. 407).

f. Receiver.-Where a receiver would in pleading make title to a chose in action or other property which had belonged to the party he represents, he must set out the facts showing his appointment. In such a case it will not answer merely to describe himself as receiver, or even to aver that he was duly appointed (Gillet v. Fairchild, 4 Denio, 80). He must set out the proceeding so that the court may see that the appointment was legal. Unless the fact of appointment is stated, plaintiff does not show any right to sue (White v. Joy, 13 N. Y. 86; see Chautauque County Bank v. White, 6 N. Y. 236; Bangs v. Melntosh, 23 Barb. 591; and Tuckerman v. Brown, 11 Abb. 389). But it is not necessary for the complaint to set out all the proceedings by which he was appointed. A complaint was held sufficient on demurrer which stated that by an order of the supreme court, made, &c., "the plaintiff was duly appointed receiver of the Bowery Bank, of the city of New York, upon filing certain security therein mentioned, which said security was duly filed on 6th November, 1857; and that the plaintiff thereupon entered upon the duties of his appointment, and is now in the lawful possession of the property and effects of said bank as receiver thereof" (Stuart v. Beebe, 28 Barb. 34; see Coope v. Bowles, 28 How. 10; 18 Abb. 442; 42 Barb. 87).

9. A demurrer to a complaint which described the plaintiff as having been

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