(No. 19.) Against an association of more than seven persons, not incorporated, by the name of its president, on a demand for rent. SUPREME COURT-RENSSELAER COUNTY. A. B. agt. C. D., president of the Association. The plaintiff complains of the defendant, and alleges: That the Association is an association consisting of more than seven members or associates, not incorporated, but associated together for the purpose of [mentioning the object,] and the defendant is the duly appointed president thereof. That said association, through its executive committee, on the 1st day of January, 1857, rented and leased of the plaintiff the room or hall in, &c., [describing it,] for the full term of one year, at and for the rent of $150, for the purpose of holding its meetings and for other purposes,' and thereupon entered upon and continued in the use and occupation of said hall, for such purpose, for the full term of one year from said 1st day of January, 1857, to the 1st day of January, 1858, and has not paid said plaintiff the said rent, or any part thereof. Wherefore the plaintiff demands judgment against the said defendant, president of said Association as 1 By the act of 1851 (chap. 455), an action will lie against the president or treasurer of such associates, who "may be liable to any action on account of such ownership or interest," and the complaint should, therefore, show such "ownership or interest.” aforesaid, for the sum of $150, with interest from the 1st day of January, 1858, besides costs. JOHN F. PORTER, Plaintiff's Attorney. (No. 20.) By commissioners of highways, under authority of statute, for damages by railroad company to highway. SUPREME COURT-COLUMBIA COUNTY. G. L. S., L. V. and C. C. H., commissioners of highways' of the town of The agt. Railroad Company. The plaintiffs, who are the commissioners of highways of the town of in Columbia county, duly elected 1 Complaints by either town, county or public officers can be very readily adapted from this precedent, the complaints in all cases being made to show, by the proper averments, the title of the officer to maintain the action. As to cases in which town and county officers and other public officers are authorized to sue, see 2 Rev. Stat., 569 ( 3d ed.); Pleadings, 443. It is said in the text (Pleadings, 144), on the authority of Cornell & Clark v. The Butternut and Oxford Turnpike Company (25 Wend., 365), that commissioners of highways, under the statute, can 2 The action is properly brought in the names of the individual commissioners, with the addition of their name of office. But the complaint must aver that they are commissioners, and, as such, complain of the defendant. If no such averment is made, showing that they sue in their official capacity, though the title names them as commissioners, they will be deemed to sue in their individual and not in their official capacity. (Gould v. Glass, 19 Barb., 179.) and qualified according to law as such commissioners, complain of the defendant, a body corporate, duly incorporated by the laws of the State of New-York, and allege the following facts constituting their cause of action: That the defendant, without the consent of the plaintiffs, by its engineers, contractors, agents and employees, has entered upon and taken possession of a portion of the public highway in the said town of -, commonly turnpike, at a point in said highway: called the That the defendant, by its contractors, agents and employees, entered upon, and on or about the day of commenced digging and excavating in said highway, at the southern point of its intersection with said railroad track, and across the whole width of said highway, for the purpose of grading said railroad track, and carrying the same along and upon said highway, as aforesaid, for the distance of feet; and that the said And not maintain an action of trespass for injury to the highway. since the Code it has been held in two anonymous cases, not reported, and also intimated in Sipperly v. The Troy and Boston Railroad Company (9 How., 83), that they could not maintain an action against a railroad company to compel such company to restore the highway to its former state of usefulness, according to the obligation imposed by statute. Since then, however, commissioners of highways have been expressly clothed with such authority by statute (Laws of 1855, chap. 255), which empowers them "to bring any action against any railroad corporation, that may be necessary or proper, to sustain the rights of the public in and to any highway in such town, and to enforce the performance of any duty enjoined upon any railroad corporation in relation to any highway in the town of which they are commissioners, and to maintain an action for damages or expenses which any town may sustain or may have sustained, or may be put to or may have been put to, in consequence of any act or omission of any such corporation, in violation of any law in relation to such highway." company has, and on the day of had, already excavated said highway, the whole width thereof, to the depth of feet, in such a manner as to obstruct the passage of wagons and teams, and to impede the public travel on said highway, and as not only temporarily to injure said highway, but permanently to impair its usefulness; and that said company has, and at said last mentioned date had, not provided any other route or passage, either permanent or temporary, whereby the public travel could be accommodated, or wagons and teams enabled to use said highway. That on said last mentioned date, the plaintiff requested who was then and is the engineer or agent of defendant, and had charge of said work, to construct and make a temporary road or passage whereby the public travel might be accommodated, and wagons and teams enabled to pass, which said refused to do; whereupon such plaintiffs, as such commissioners, &c., caused such temporary road or passage to be constructed, at an expense of $ and upwards. That said defendant has completed its railroad, and left said highway impassable, except by means of the road or passage constructed by these plaintiffs, as aforesaid, and has permanently impaired the usefulness of said highway. Wherefore the plaintiffs, as such commissioners, &c., demand judgment1 against the defendant for the sum of besides interest from, &c., and costs. G. V. S., Plaintiffs' Attorney. · 1 This complaint is altered from that used in one of the anonymous cases referred to in note on page, 396, ante, and to which a demurrer was allowed by Justice WM. B. WRIGHT at the Columbia Special Term, before the passage of the act of 1855. That action was brought for an injunction (during the progress of the road) and to compel the restoration of the highway. The complaint contained a variety of (No. 21.) ́By a trustee, under an assignment for the benefit of creditors, on a policy of insurance, effected by trustee, on machinery in a mill belonging to the trust estate. SUPREME COURT-RENSSELAER COUNTY. Daniel H. Vial, assignee, &c., of George B. Slocum, The Genesee Mutual Insurance Company. The said plaintiff, Daniel H. Vial, as assignee in trust, for the benefit of creditors, of the debts, estate and effects other facts and allegations going to show that, if the work was allowed to proceed, the highway would be permanently impaired, and that the company, from the nature of things, could not "restore it to its former state, so as not to have impaired its usefulness ;" and it closed with the following prayer for relief: "Wherefore the plaintiffs, commissioners of highways, as aforesaid, ask the judgment of this court, that the defendant, the Hudson River Railroad Company, its officers, engineers, contractors, agents and employees, perpetually be restrained and enjoined from the excavation of said highway, and from digging, trenching or carrying away any part of the soil thereof, further than may be necessary to cross the same, and to grade the track of said railroad as nearly as may be with the level of said highway, and that said company may be directed and ordered forthwith to fill up the excavations already made by it on said highway, or which may be hereafter made, and to restore the said highway to its former state in a sufficient manner, so as not to have impaired its usefulness, or for such other or further judgment and relief in the premises as the nature of the case may require, and as may be necessary to protect the rights of the plaintiffs and the public interest; and that in the mean time an order may be allowed, restraining and enjoining the defendant, its officers, engineers, contractors, agents and employees, from excavating, digging or trenching in said highway, or carrying away any portion of the soil thereof, until the hearing of this cause, or until the further order of this court.” |