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716). If the defendants use a corporate name, and as such contract the obligation, they cannot, when sued by such corporate name, set up that they are not a corporation (id.); and where the complaint alleged that "the defendant is an incorporated company, doing business at Moriah, in the county of Essex," it was held sufficient, and that the court would not intend that the defendant was a foreign corporation (Acome v. Amer. Mineral Co., 11 How. 26). Hunter v. Hud. Riv. Iron and Machine Co. (20 Barb. 493), the complaint commenced by stating that the defendants were a manufacturing company, formed In under the act of March 22, 1811; and nothing more was said as to the corporate character of the plaintiff. No objection was made. See Foreign Corporation, Stockholder.

a. In actions in the local courts of cities mentioned in section 33 of the Code of Procedure against domestic corporations transacting their business, or keeping an office within such cities, it is not necessary for the complaint to show that the defendants transact their general business or keep an office within such city (Corn Ex. Bank v. Western Transp. Co., 15 Abb. 319, note).

b. The title to the rights of action against a corporation on its dissolution, as to the personal estate, passes either at common law to the people, or under the statute to a receiver. A creditor of a dissolved corporation (in another State, with judgment and execution returned unsatisfied) cannot sustain an action against such corporation, unless he shows that the right of action does not pass to the people, or to a receiver, or that the receiver colludes with the defendants, or that no receiver can be appointed (Tinkham v. Borst, 15 How. 204).

c. A promissory note made by a corporation incorporated by the laws of a foreign State, will be deemed to be valid and authorized by the charter of the corporation until the contrary appears; and therefore in an action on such a note, in the courts of this State, the complaint need not show that the making the note sued upon was an act within the corporate power of the company defendant, or pursuant to a resolution of the board; if in fact the note was made in violation of the defendant's charter of incorporation, that is matter of defence (N. Y. Floating Derrick Co. v. N. J. Ore Co., 3 Duer, 648; Halstead v. Mayor of N. Y., 5 Barb. 218; see Nelson v. Eaton, 15 How. 305; 7 Abb. 305; Ogden v. Raymond, 5 Bosw. 62; Mechanics' B'k'g Asso. v. Spring Valley Shot Co., 25 Barb. 419; rev's'g 13 How. 227; Moss v. Averell, 10 N. Y. 449; see post in note to § 149; What may be denied).

As to foreign corporations, see sect. 427, post.

d. A corporation, or the receiver of a dissolved corporation, cannot maintain an action for usurious premiums paid on loans (Butterworth v. O'Brien, 7 Abb. 456; 28 Barb. 187; 16 How. 503).

e. Covenant. In assigning a breach of covenant," it must distinctly appear, by express words, or by a necessary implication, that, admitting the truth of the facts stated in the complaint, the defendant has broken the covenant in its true sense and meaning. The words of the covenant need not be literally, but must in all cases be substantially followed" (Schenk v. Naylor, 2 Duer, 678). Therefore, where the complaint alleged a lease of a basement, containing a covenant "that the defendant should not let or underlet any other part of the building as a restaurant or porter house," and then alleged a breach as follows: "Plaintiffs show that on, &c., a porter-house was opened on the first floor above the basement so let by plaintiff to defendant, which porter-house is still occupied as such, to the great damage of plaintiffs, and in violation of defendant's agreement as above stated,"complaint did not state facts sufficient to constitute a cause of action, was -a demurrer on the ground that the sustained, because the complaint did not show any breach of the covenant; the covenant is not general, and is limited to the personal acts of the defendant; and the breach does not allege, that any of the acts supposed to constitute the breach, were done by the defendant. The words "in violation of the defendant's agreement" are added, but these words aver only a conclusion of law; and as the averment is not justified by any facts stated in the complaint, the averment is irrevelant and nugatory; and see Lynch v. Murray, 21. How. 154.

a. Where a covenant was that they (the defendants) would not carry on any trade, a breach alleging that one had carried on trade was held insufficient (Lawrence v. Kidder, 10 Barb. 642).

b. An averment that a boat has been greatly damaged, and is constantly de preciating in value, by reason of being withdrawn from navigation and laid up at the dock, and from want of care to her safe-keeping, and from the defendant's neglect to keep her in good order and repair, and in a state fit for navigation, is not a proper form of averring a breach of the agreement to keep the boat in repair (Coster v. N. Y. and Erie R. R. Co., 6 Duer, 44). To allege that defendants covenanted without stating or showing how they coven.' anted, is not sufficient (Austin v. Searing, 16 N. Y. 122; Laraway v. Perkins, 10 N. Y. 371).

c. In an action by a landlord against an assignee of the lease, for a breach of a covenant to pay rent, if the complaint alleges a demand and refusal of the rent, it need not also allege that the rent remained unpaid at the commencement of the action (Holsman v. De Gray, 6 Abb. 79). In an action to recover the possession of demised premises for non-payment of the rent, the complaint need not allege a demand of payment of the rent (Mayor of N. Y. v. Campbell, 18 Barb. 156). Whether it must aver that there is not a sufficiency of goods on the demised premises to satisfy the rent. Query. (Id.)

d. Where in an action for rent accrued upon a lease in fee, the complaint alleged that the grantor and covenantee V. R. died on, &c., seized of the rent in question, that by his will he devised said rent to W., and that on, &c., W. conveyed said rent to A., and that A. conveyed it to the plaintiff, held suffi cient to show title in plaintiff, and that it was unnecessary to allege that plaintiff had continued owner; that would be presumed (Van Rensselaer v. Bonesteel. 24 Barb. 365).

e. In an action for a breach of covenant the alleged damages must be averred in the complaint (Neary v. Bostwick, 2 Hilton, 514).

See Rent.

f. Cloud on title.-Complaint to remove (Johnson v. Stevens, 13 How. 132). g. Commissioners of Highways.-Requisites of complaint against commissioners of highways for not repairing bridges (Smith v. Wright, 27 Barb. 621).

h. Compromise.-Requisites of complaint to recover amount agreed to be paid to compromise a doubtful claim (Ďolcher v. Fry, 37 Barb. 152).

i. Creditor's bill.-The remedy formerly known as a creditor's bill, was one given by statute (2 R. S. 174; § 38). The statute is unrepealed, except that portion that authorizes a discovery, and the remedy remains as before; but the mode of pursuing the remedy must be by action commenced by summons and complaint (Catlin v. Doughty, 12 How. 457; Hammond v. Hudson River Iron & M. Co., 20 Barb. 378; Rogers v. Hern, 2 Code Rep. 79). Such an action is not an action on the judgment (Dunham v. Nicholson, 2 Sand. 636; Catlin v. Doughty, 12 How. 45. Upon a judgment taken against joint debtors, of whom some only have been served with process, a creditor's action can be maintained to reach the separate property of the defendants served, but not to reach the property of those not served (Billhofer v. Heubach, 15 Abb. 143; Field v. Chapman, 13 Abb. 320; Field v. Hunt, 22 How. 329; affirmed, 24 How. 463; see, however, Field v. Hunt, 23 How. 80; Field v. Chapman, 14 Abb. 133). A creditor's bill cannot be maintained on a judgment in a foreign State (McCartney v. Bostwick, 31 Barb. 390). The plaintiff is not entitled to this remedy until he has made a bona-fide effort to collect his debt by execution, and the execution has been returned unsatisfied (Parshall v. Tillou, 13 How. 7); and the execution must have been against the property of all the judgment debtors, and the remedy thereon pursued to every available extent (Field v. Chap man, 13 Abb. 320; Field v. Hunt, 22 How. 329; affirmed, 24 How. 463; see, however, Field v. Hunt, 23 How. 80). The action may be commenced immediately after the execution has been returned unsatisfied, although sixty days

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have not elapsed since it issued (Forbes v. Waller, 25 N. Y. 430; Forbes v. Logan, 4 Bosw. 475; Knauth v. Bassett, 34 Barb. 31; Field v. Hunt, 24 How. 463; Field v. Chapman, 14 Abb. 133; 15 Abb. 434; Billhofer v. Heubach, 15 Abb. 143; overruling Field v. Chapman, 13 Abb. 320; Renaud v. O'Brien, 25 How. 67). It should appear on the face of the complaint that execution has issued to the county where defendant resided, and has been returned unsatisfied (Cooper v. Clason, I Code Rep. N. S. 347; Campbell v. Foster, 16 How. 275); but unless it appears on the face of the complaint that the defendant has real property in the county in which he resides, the complaint need not show that the judgment has been docketed in such county (Millard v. Shaw, 4 How. 137). The remedy on a judgment of a justice's court is not exhausted until the judgment has been docketed in the county clerk's office, and an execution against real estate has been issued (Dix v. Briggs, 9 Paige, 595); and the necessity for docketing the judgment in the office of the county clerk will not be dispensed with by an averment that the defendant has no real estate (Coe v. Whitbeck, 11 id. 42); therefore an action in the nature of a creditor's bill cannot be sustained by a judgment of a justice's court, where the only execution returned unsatisfied was that issued by the justice (Crippen v. Hudson, 3 Kernan, 161). But if the judgment was in the supreme court, the allegation of docketing was not necessary (Youngs v. Morrison, 10 Paige, 325). The rules of the late court of chancery required that in a creditor's bill it should be alleged that it was not preferred and prosecuted by collusion, for the purpose of protecting the property and effects of the debtor against the claims of other creditors; and further, that the defendant had equitable interests or property to the value of $100 or more. These rules are supposed to be no longer in force, and it is sufficient if the plaintiff comply with the code and set forth all that, by the revised statutes, is made requisite to the filing a creditor's bill (Quick v. Keeler, 2 Sand. 231; Hammond v. Hudson River Iron and Machine Co., 20 Barb. 386; Mallory v. Norton, 21 id. 436; Batterson ▼. Ferguson, 1 Barb. 490). And now a creditor's bill may be maintained although less than $50 are due (Sarsfield v. Van Vaughner, 15 Abb. 65; 38 Barb. 444; reversing, 14 Abb. 297; and dictum, Butts v. Dickinson, 20 How. 235; Shepherd v. Walker, 7 How. 46; Cobine v. St. John, 12 How. 337; and see Dix v. Briggs, 9 Paige, 595).

a. If defendant has property liable to execution, that fact may be set up in the answer, and if established by proof, will entitle the defendant to a dismissal of the complaint (Millard v. Shaw, 4 How. 187). If there should be any oppression in resorting to this form of action, instead of pursuing the summary proceedings given by the code, the court will consider that in its disposition as to the costs of the action (Catlin v. Doughty, 12 How. 460).

b. A judgment creditor, without resorting to an execution, may maintain an action to set aside any fraudulent transfer of property made by the judgment debtor (Parshall v. Tillou, 13 How. 7; Loomis v. Tift, 16 Barb. 541; Cooper v. Clason, 1 Code Rep. N. S. 347; Skinner v. Stuart, 13 Abb. 442; Wilson v. Forsyth, 24 Barb. 105; Gaspar v. Bennett, 12 How. 307; contra, see McCullough ▼. Colby, 5 Bosw. 477); and after a receiver has been appointed in supplementary procedings (Gere v Dibble, 16 How, 31); the revised statutes (2 R. S. 174, SS 38, 39), apply only to creditor's bills, strictly so called, where the only claim to relief is that the remedy at law is exhausted, and they leave untouched the common-law powers of the court, as a court of chancery, in reference to fraudulent trusts and conveyances (Chautauque County Bank v. White, 2 Selden, 236). The creditor, on establishing a lien, or quasi lien, on the property conveyed away, is entitled to relief, notwithstanding he may have a remedy on his execution. (Id.; Greenwood v. Broadhead, 8 Barb. 593′; Crippen v. Hudson, 3 Kernan, 161). But a creditor not having a lien or quasi lien by judgment, or otherwise, has no right to ask to have a transfer set aside as fraudulent (Reubens v. Joel, 13 N. Y. 488; N. Y. Ice Co. v. N. Western Ins. Co., 21 How. 296).

c. A creditor who has commenced an action to recover his debt, in which

an attachment has been issued and levied, cannot bring a second action to recover his debt, set aside a judgment previously recovered against the debtor, and for an injunction (Mills v. Block, 30 Barb. 549; and see Cropsey v. McKin ney, id. 47; Brooks v. Stone, 11 Abb. 220; contra, see Skinner v. Stuart, 13 Abb. 442; 39 Barb. 206).

a. The judgment creditor may commence the action for his own benefit, or in behalf of himself and all others in the same situation with himself, who may choose to come in and contribute to the expenses of the suit; and it is not a subject of demurrer that all the creditors of the judgment debtors are not joined as plaintiffs. And property in the hands of a fraudulent assignee may be reached by a direct action against the debtor and assignee (Hammond v. Hudson River Iron and Machine Co., 20 Barb. 378). Where in an action brought by a judgment creditor against a judgment debtor, in aid of the suit at law, the complaint alleges that property and money received by third persons, under and by virtue of a fraudulent assignment and judgment, was the property of the judgment debtor, such third persons are necessary parties to the action; and independently of any claim such third persons may set up, as owners of the property sought to be reached by the action; if they were charged by clear, distinct, and specific allegations in the complaint with fraudulent and unlawful acts, and with efforts to hinder and delay the plaintiffs in the collection of their debt, it is enough to render them proper parties to the action. (Id.)

b. Where the complaint in a creditor's suit alleged that the judgment debtor had made a fraudulent general assignment, with intent to delay his creditors, and that the assignee colluded with him. It also alleged several other conveyances by the debtor in fraud of his creditors, to various persons, made defendants. No privity was alleged between the defendants, and the complaint asked to have the assignment and conveyances set aside. On demurrer, it was held that there was no misjoinder of parties and causes of action (Read v. Stryker, 12 Abb. 47; reversing, 6 Abb. 109; and see Morton v. Weil, 11 Abb. 421).

c. Executors.-A complaint against executors on an indebtedness of the testator after alleging a promise by one defendant, "who was then and there the only executor who had qualified," and that afterwards letters testamentary were granted to the other executor, whereby an action had accrued against the defendants as executors, was held sufficient (Benjamin v. Taylor, 12 Barb. 328).

d. False imprisonment. [The material allegations are, (1) that defendant imprisoned plaintiff; (2) against his will, and without authority of law]. The mode of stating a cause of action for false imprisonment before the code, may still be followed (Shaw v. Jayne, 2 Code Rep. 69; 4 How. 119; Eddy v. Beach, 7 Abb. 19). The circumstances and particular instrumentality by which the plaintiff was deprived of his liberty need not be stated, and if stated, will be stricken out (id.; Molony v. Dores, 15 How. 266; but allegations of special damage by reason of the imprisonment may be inserted. Thus, in an action against a member of the San Francisco Vigilance Committee for false imprisonment, &c., an averment that the Vigilance Committee caused to be published in numerous organs conducted by them, that the plaintiff was a notorious criminal, and a worthless, disreputable character, was, on motion to strike out, allowed to stand, as being an averment of special injury (Molony v. Dows, 15 How. 266, citing Reg. v. Best, 1 Salk. 174; 2 Ld. Raym. 1167; Anon. 3 Salk. 97). But in the same case allegations of aggravating circumstances were struck out. (See note to section 160, post.)

e. In an action for false imprisonment against a justice of the peace, it was held that the plaintiff could not recover in damages the amount of costs incurred by him in an unsuccessful application for his discharge on a writ of, habeas corpus, such costs not having beeen alleged as special damage in the complaint (Spence v. Meynell, 2 New Mag. Cas. 19; contra, Williams v. Garrett 12 How. 456).

a. False representations to induce credit.-The complaint must aver, (1) a representation; (2) that it was false; (3) and made with an intention to deceive and defraud the plaintiff (Zabriskie v. Smith, 3 Kernan, 330). "The complaint shows a false representation, known to be false, made the foundation of a contract with a person deceived thereby, and damages in consequence of such deception. I know no other requisite to make out a sufficient cause of action for a false representation" (Robinson v. Flint, 16 How. 240). "To represent of a man entirely insolvent, that you have examined into his affairs, and considered him solvent and worthy of credit, and that he is going on well, when all you know of his business condition is, that he owes a large sum of money, is actionable if the representation was made from bad motives, in order to induce a credit" (Denio, J., Zabriskie v. Smith, 3 Kernan, 330). The complaint must also state in what manner the plaintiff was induced to give the credit; in other words, the representation made should be stated, that the court ay judge if it was sufficient to mislead, or the plaintiff does not show a cause of action; and where (Wells v. Jewett, 11 How. 242) a complaint alleged the fraudulent issue, by the defendants, of certain stock, and that plaintiff believing the representations of M., J., and S., three of the defendants, as to the value of said stock, and being ignorant as to the fraudulent issue of the stock, became the purchaser of said shares, believing them to be genuine, the defendants demurred. The demurrer was allowed; and per Mitchell, J. "This complaint merely intimates that there were representations made by Mali, Jewett, and Stacy as to the value of the stock, but what they were is not stated; nor is it stated that they were untrue, or known to the defendants to be untrue, or that they induced the plaintiff to buy, or that they were made with an intent to deceive and defraud the plaintiff, nor that they were made to the plaintiff, or in such way as to show an intention to have been communicated to dealers in the stock, or to others. The complaint is bad in those respects." (See Bell v. Mali, 11 How. 254; Galliard v. Mali, id. ; Mead v. Maii, 15 id. 348). See Fraud.


b. False warranty.-[The material allegations are (1) the warranty; (2) that it was false; and (3) that the purchaser was deceived by it (Holman v. Dord, 12 Barb. 339)] There need be no allegation that defendant knew the warranty was false (id.), or that there was fraud on the part of the seller. It is enough to aver the warranty, and that the warranty is false. If fraud be averred, it is not necessary that it should be proved, to entitle the plaintiff to recover. Therefore, where the plaintiff averred that the defendant "by falsely and fraudulently warranting a horse sold by him to the plaintiff, &c., and on the trial proved an express warranty, and that it was false,-held that he was entitled to recover, although the jury found specially that there was no fraud (Fowler v. Abrams, 3 E. D. Smith 1; and see Edick v. Crim, 10 Barb. 445).

c. The existence and terms of the warranty, as material and traversable facts, must be alleged in the complaint, whether the warranty be express or implied (Prentice v. Dike, 6 Duer, 223). No scienter need be alleged; it is sufficient to aver that the warranty was false, and that the plaintiff was deceived by it (Holman v. Dord, 12 Barb. 336; see, however, Mabey v. Adams, 3 Bosw. 346).

d. To sustain an action on a warranty, it is not necessary that all the representations made by the defendant should be false, or all actionable; if any part of the representations are actionable it will suffice. An affirmation in regard to an existing fact, distinctly and positively made in the negotiations for trade, should be regarded as a contract and enforced as a warranty (2 Cowen, 438; 4 id. 440; 10 Wend. 41; 6 Barb. 537; Sweet v. Bradley, 24 Barb. 554).

e. Foreclosure of mortgage.-In a complaint to foreclose, the general allegation that the defendants, naming them, have or claim some interest in, or lien upon, the mortgaged premises, which, if any, is subsequent to the plaintiff's mortgage, is a sufficient statement of a cause of action against such defendants (Drury v. Clark, 16 How. 424, 431; 2 R. S. 191, § 155); and where there are infant defendants, the complaint should allege the requisite facts to

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