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White, receiver, &c., agt. Miles and Lewis Joy.

said receiver of the Canal Bank was, in his official character and capacity as such receiver, the owner and holder of the promissory note mentioned in the complaint; and insisted that the said Andrew White was not entitled to recover against the defendant any judgment whatsoever, by reason of anything alleged in the said complaint.

The plaintiff replied, that on or about the 17th day of July, 1848, he was, by an order of the supreme court, made pursuant to statute, on occasion of the insolvency of the said Canal Bank of Albany, appointed receiver of the property, effects, and things in action of said bank; that he was the receiver mentioned, and whose appointment was set forth in the answer; and that he was now the holder and owner of said note as such receiver, and seeks to recover in this action in that capacity, and not individually.

To this reply Lewis Joy demurred, and assigned the following causes :

1st. That the said reply does not correspond with the summons in this action, in this: that said plaintiff, in said summons, describes himself as “ Andrew White, of the Canal Bank of Albany,” and gives notice, in said summons, that in case of the failure of the defendants to answer the complaint in this action, he will take judgment against them; and in and by his said reply he seeks to recover the same judgment, in his therein first alleged capacity of receiver of the Canal Bank of Albany, and not individually, as by his said summons he claims to do.

2d. That said reply shows that the plaintiff is not entitled to recover, by reason of the fact stated in the complaint.

3d. That the plaintiff, by his said reply, seeks to avoid the effect of the defendant's answer, and at the same time, by means of the last pleading (save a demurrer) allowed by law in an action, to deprive this defendant of stating and pleading all or any of the defences which he has, or may have, to any action which may be brought by the receiver of the Canal Bank of Albany, or of any assignee, after maturity of the promissory note mentioned in the complaint, for the recovery, by the said receiver, in his capacity of receiver, or by such assignee, after

White, receiver, &c., agt. Miles and Lewis Joy

maturity, of the amount claimed to be due upon said promissory note.

4th. That by said reply the plaintiff has abandoned and deserted the grounds taken by him in his complaint, and upon which he therein sought to recover, and resorts to other grounds of recovery.

5th. That by said reply the plaintiff seeks to recover in a different character from that in which he seeks to recover in his complaint.

6th. That the reply is a departure from the complaint, and is a departure from the grounds and cause of action set forth in the complaint.

7th. That the said reply is in other respects defective, insufficient, and informal.

The demurrer was brought to argument before Justice Wright, who gave judgment for the defendants thereon, and the plaintiff appealed to this court.

Lansing & Pruyn, for appellant.
Welch & HIBBARD, for respondents.

By the court-Watson, Justice. The first and most important question arising upon the pleadings is, in what capacity did the plaintiff sue? In the summons he describes himself as “ Andrew White of the Canal Bank of Albany, plaintiff,” and gives notice that if the defendants fail to answer the complaint, that, as such plaintiff, he will take judgment against them. So far as the summons goes, he clearly sues as an individual, for he does not represent himself to be even an officer of that bank. But, passing by the summons, and taking up the complaint, does the plaintiff appear in any other light? It is true, the complaint is entitled, “ Andrew White, receiver of the Canal Bank of Albany;" but how he acquired that fiduciary capacity, by the order of what court, at what time, or at what place, it is no where set forth in the complaint. Without setting forth these essential requisites, the law adjudges that he sues in his individual capacity, and that the words, “Receiver of the Canal.

White, receiver, &c., agt. Miles and Lewis Joy.

Bank,” are merely descriptive of the person. (Ex parte The Bank of Monroe, 7 Hill, 177; 3 Comstock, 44 & 46; Stone agt. Wood, 7 Cowen, 453; 8 id. 81.)

It was necessary to allege, in legal form, that the plaintiff was appointed receiver of the property and effects of the bank. The time, place, and manner of the appointment are traversable facts, and should be stated. (4 Denio, 80; 2 Barb. S. C. R. 369; 17 Wend. 198; Storys Egt. Ple. 38, 257, 258, and 260.) The corporation being dead, the receiver's right to administer upon its estate or effects is a material and traversable fact; and if the decree of the court appointing him had been set out, or the substance of it, the court could have determined, after the defendant had had an opportunity of traversing the facts set forth, whether the 'plaintiff, as a receiver, had a right to recover on the note. Upon this point the complaint is entirely silent. The plaintiff's complaint, therefore, is wholly defective, in not showing any facts that entitle him, in the capacity of receiver, to recover upon the note, or even to show that he is the holder and owner, as such receiver.

The Code, which is always referred to as authority to support a loose or defective pleading, will not sustain the complaint in this case. That requires “ a plain and concise statement of the facts constituting a cause of action, without any unnecessary repetition.” (Code, § 142, sub. 3.) Here the facts set forth in the complaint do not constitute a cause of action, and do not entitle the plaintiff to recover in the capacity in which he seeks to recover.

The plaintiff insists that there is no such ground of demurrer allowed by the Code as is here taken by the defendant. If the reply of the plaintiff, to any defence set up by the answer of the defendant, be insufficient, the defendant may demur thereto, and shall state the grounds thereof. (Code, $ 155.) Here the broad ground is afforded to the defendant to demur to the reply wherever it is insufficient, without pointing out on what particular grounds the reply shall be deemed insufficient. It must be tested by the same rules which are applied to other pleadings.

What is the reply in this case to that part of the defendant's

White, receiver, &c., agt. Miles and Lewis Joy.

answer, which sets forth that a receiver had been appointed upon the property and effects of the Canal Bank, and that the defendant and his co-defendant were indebted to the receiver, in his capacity as receiver, to the amount of the note, and not the plaintiff individually? His reply is, that by an order of the supreme court, he had been appointed receiver of the said bank, and that, as such receiver, and not individually, he claimed to recover of the defendants the amount of the said note. Here is a total departure from the complaint. There, as I have shown, he claimed to recover individually of the defendants. Here he claims to recover in the capacity of a receiver, duly appointed to administer upon the effects of a defunct corporation.

These rights are entirely distinct, and depend upon entirely different facts. The defendant had joined an issue upon the plaintiff's right to recover in his individual capacity, by denying, in the first part of his answer, every material fact in the complaint constituting a right on the part of the plaintiff to recover in that character. In the second part of his answer he sets forth facts, which show that another person, to wit, the receiver of the Canal Bank, had a right to recover upon the said note, and not the plaintiff individually. The plaintiff, in his reply, abandons entirely the only grounds on which he claimed to recover in his complaint, and assumes a wholly different character—that of a receiver of an insolvent corporation, appointed by an order of the supreme court, and claiming, in that character, to recover upon the note. Now, unless the Code authorizes a plaintiff to recover upon facts set forth in his reply only, which are not mentioned or referred to in his complaint, then the plaintiff cannot recover in this case. The plaintiff has no cause to complain, if the rules of law applicable to pleadings are strictly and rigidly enforced against him in this case. His position is one which he voluntarily chose. When the answer of the defendant distinctiy apprised him of the difficulty in the way of his recovery, he might have amended his complaint by setting forth facts sufficient to show his right to recover as receiver of the bank; or if his complaint was not amendable,

Eckerson and another agt. Vollmer, &c.

then he could have discontinued his suit. Instead of doing either, he has chosen to interpose a reply to the defendant's answer, which reply is wholly insufficient; and the defendants should have judgment upon demurrer, with leave to the plaintiff to amend on payment of costs.



John A. VOLLMER and MagDALENA, his wife.

In an action relating to real estate, against husband and wife, where process is

served only on the husband, he is bound, except where the estate is the separate property of the wife, to enter a joint appearance and put in a joint

answer for himself and wife. An inchoate right of dower is an interest which results from the marital rela

tion, and does not belong to the wife as her separate estate.

Kings Speciel Term, March, 1855.

This action was brought to set aside a conveyance of certain real estate alleged to have been made by John P., and Samuel Fowler, to the defendant, John A. Vollmer, with intent to defraud the plaintiffs and other creditors of Gotfried Vollmer. The summons was served on John A. Vollmer, but not on his wife. The action was tried before a referee,.and judgment was entered upon his report, setting aside the conveyance, and directing the defendants, John A. Vollmer and wife, to execute a deed of the premises to a receiver.

The defendant, Magdalena, now moves to vacate the answer and all subsequent proceedings, so far as the same affect her, and that she may be allowed to put in an answer to the complaint and defend it, for the reason that she was not served with process, and that no appearance or defence has been put in for her by any person authorized by her.

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