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(No. 17.)

By the committee of a lunatic or habitual drunkard, on a demand against the survivor of a firm for service of the lunatic, no price having been agreed upon.1

SUPREME COURT-RENSSELAER COUNTY.

A. B., Committee of the person and estate of C. D., a lunatic,

agt.

E. F.. survivor of E. F. and J. D., deceased.

The plaintiff complains of the defendant, and alleges the following facts, constituting his cause of action:

1 By the Laws of 1845 (chap. 112), "receivers and committees of lunatics and habitual drunkards, appointed by any order of the Court of Chancery (Supreme Court), may sue, in their own names, for any debt, claim or demand transferred to them, or to the possession or control of which they are entitled as such receiver or committee," &c., &c. Under this statute it has been held that a lunatic, by the appointment of a committee, loses none of his estate, rights of property or rights of action, and that all suits affecting his personal property must be prosecuted in his own name, except those authorized by this statute to be brought in the name of the committee; and that the statute does not embrace an equitable proceeding by which an estate or interest in real property is sought to be established. (McKillip v. McKillip, 8 Barb., 552.) But in the case of Person, committee, v. Warren (14 Barb., 488), it is held that though, in an action to set aside an act or deed done by the lunatic, while such, as for example a confession of judgment, the committee could not be regarded as a person "expressly authorized by statute," under section 113 of the Code, yet he might still maintain such action under that section, as being the "trustee of an express trust."

As to when committee may maintain an action alone, and when the lunatic must join with him or sue, see Pleadings, 136, 142.

A creditor of an habitual drunkard (or lunatic) cannot maintain a

and

and

That, by virtue of a commission heretofore issued out of the Supreme Court to to inquire whether the said C. D. was a lunatic or not, such proceedings were thereunder had, that on the execution of said commission by the persons therein named, and in the manner therein required, the said C. D. was found by the jury, empanneled to try said question, to be a lunatic, and incapable of the government of his person and estate; that afterwards, at a Special Term of the Supreme Court, held at the court-house in the city of Troy, on the day of, the report of said commissioners and finding of the said jury were confirmed, and the said plaintiff, A. B., was duly appointed, by order of the court, committee of the person and estate of said C. D., on his executing and filing a bond, approved by a justice of said court, in the penalty of $, for the faithful discharge of his duties as such committee in the manner required by said order; that such bond has been duly executed, approved and filed, as required by said order, and a commission in due form under the seal of said court has been issued to said plaintiff as such committee, and he has taken upon himself the burden of such trust.1

legal action against his committee to recover a judgment upon a debt or demand against the drunkard. The proceeding by petition, as formerly in a court of equity, is the proper course, and should always be adopted, unless it is shown that a trial is necessary to settle some disputed question or right. In such case an order, upon cause shown, should be obtained, authorizing the bringing of an action in the nature of a suit in equity. (Hull's executors v. Taylor, committee, &c., 8 How., 428.)

1 In an action brought by a committee, his title to maintain the suit must be shown in the same manner as that of a receiver. The time, place and manner of his appointment must be stated, as they are traversable facts and the defendant has the right to take issue upon them. (White, receiver, v. Joy, 11 How., 36; same case, 3 Ker., 86, per DENIO, J.; Hull's executors v. Taylor, committee, &c., 8 How.,

That on or about the day of, the said C. D., at the request of said E. F. and J. D., who were then partners in trade under the firm name of E. F. & Co., entered into their employ as [stating generally the nature of the services,] and continued in such employ for the period of six months then next ensuing, and during all that time rendered labor and service for them as such, &c., which services were reasonably worth the sum of $, no part of which has been paid to said C. D. or this plaintiff. That said J. D. has since died, to wit, on the

of

day -, leaving him surviving the defendant, E. F. Wherefore the plaintiff demands judgment against the defendant for the sum of $, with interest from, &c., besides costs.

J. L. F.,
Plaintiff's Attorney.

628; Pleadings, 291, 292.) It will be seen that in all these cases coming under the exception of section 113 of the Code, which allows persons "expressly authorized by statute" to sue without joining the real party in interest, the rule is the same. It is not sufficient generally to describe the plaintiff as committee, &c., but the facts showing the appointment must be stated in all cases, whether the action be brought by an executor or administrator, a president of an association, or bank, a committee, receiver, public officer or any other person not the real party in interest, but clothed with a statutory power to sue. It is but the application of the general rule, that the plaintiff must show his right to the claim or demand. He must show it if he is the real party in interest or owner of the demand; and he must show it none the less distinctly if he claims it merely in a representative or fiduciary capacity.

(No. 18.)

By the president of a joint stock or other association of more than seven persons, not incorporated, on a demand owned by such association for land sold.1

SUPREME COURT-COLUMBIA COUNTY.

A. B., President of

ciation,

agt.

C. D.

Cemetery Asso

The plaintiff complains of the defendant, and alleges: That said plaintiff is the president, duly elected, of the Cemetery Association, of the town of

1 By the Laws of 1849 (chap. 258), any joint stock company or association, consisting of seven or more associates, may sue or be sued in the name of the president or treasurer; and the act of 1851 (chap. 455) extends the act of 1849 to any company or association, composed of not less than seven persons, who are owners of or have an interest in, any property, right of action or demand, jointly or in common. The complaint, therefore, should allege that the party bringing the suit is president of such an association or company, and should show that the demand belongs, jointly or in common, to the shareholders.

The complaint is that of a company not incorporated; for it has been held that the provisions of the acts are applicable only to unincorporated companies or associations; now, it is only suits by or against such that can be prosecuted in the names of all the shareholders. (New-York Marbled Iron Works v. Smith, 4 Duer, 362. )

The intent of the statutes is to obviate the inconvenience of joining all the shareholders or associates as parties; it is to facilitate an existing right of action, and not create a new one. Hence, the president or treasurer of such an association has no right to sue, except in cases where the shareholders or associates could before have sued. (Corning v. Green, 23 Barb., 33.) These, officers, therefore, are

which is an association not incorporated,' composed of more than seven associates or shareholders, and is the owner, that is to say, the said associates jointly own a certain lot of ground, consisting of about three acres, in said town, known as the cemetery, and laid out

for the purpose of a rural cemetery or burial ground. That said defendant, on the day of, bought of said association, and took a proper conveyance therefor, a lot in said cemetery known as lot No., for the price of $150, and has entered upon the possession thereof, but has not paid for the same, except the sum of $50, paid at the date of said conveyance.2

Wherefore the plaintiff, as such president, &c., demands judgment against the defendant for the sum of $100, with interest from day of, besides costs.

J. F. P.,

Plaintiff's Attorney.

persons "expressly authorized by statute" to sue, within the meaning of section 113 of the Code. In Tibbetts, treasurer, &c., v. Blood (21 Barb., 650), it is held that a promissory note, executed to bearer and given for the benefit of a division of the "Sons of Temperance," composed of more than seven persons, might be sued in the name of the treasurer, and that the complaint need not state the names of seven of the associates. It is sufficient if it avers that the association consists of seven associates, and upwards. Companies or societies, not incorporated by competent authority, are nothing more than ordinary partnerships, however numerous the members may be. (Dennis and others v. Kennedy and others, 19 Barb., 517.)

1 1 If the association is incorporated, of course the action should be in its corporate name.

2 It is unnecessary for the plaintiff to set forth, in his complaint, payments made to him on account of the indebtedness in suit. (Van Demark v. Van Demark, 13 How., 372.)

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