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. Ý. 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. Mclntosh, 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. 31; see Coope v. Bowles, 28 How. 10; 18 Abb. 442; 42 Barb. 87).

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

11

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duly appointed receiver of John W. Crane, and bringing this suit by order of the supreme court, was sustained on the ground that it was necessary to state the time and mode of appointment, so that the adverse party might take issue on such facts (Dayton v. Connah, 18 How. 326); query, was not the allegation that he was duly appointed" sufficient? Thus where it was alleged in terms that the plaintiff has been duly appointed receiver, and the objection was that the complaint did not state with sufficient precision how he became such receiver, the defect was held not to be insufficiency, but indefiniteness (Cheney v. Fisk, 22 How. 238; see The People v. Walker, 23 Barb. 305; 2 Abb. 422; Cruger v. Halliday, 3 Edw. Ch. R. 570; The People v. Ryder, 12 N. Y. 433; Fowler v. N. Y. Indem. Ins. Co., 23 Barb. 143; Morange v. Mudge, 6 Abb. 243; Woodbury v. Sackrider, 2 Abb. 405; Sere v. Coit, 5 Abb. 482; Farmer's Bank v. Empire Stone Dressing Co. 10 Abb. 47; French v. Willet, id. 102; Høyt v. Thompson's Exrs. 19 N. Y. 208. See post, p. 159, b).

a. As to character in which defendant is charged.—As in the case of a plaintiff so in the case of a defendant, the presumption is that he is suing in his individual capacity, unless the contrary be made to appear; if, therefore, the plaintiff seeks to charge him in any other than his individual capacity, it should appear by the complaint that such is the object of the action. It seems this object would be sufficiently indicated by a simple allegation that the defendant is executor, &c., and that the plaintiff need not state how, or when, or where, or by whom, he was invested with the character in which the plaintiff seeks to charge him. If the defendant has ever become invested with the character in which the plaintiff seeks to charge him, the manner and time and place of such investiture are supposed to be better known to the defendant than the plaintiff; and if he never was invested with the character in which he is sued, he has simply to deny that he is executor, or whatever may be the character attributed to him by the complaint.

b. Permission to sue, when to be alleged.—There are some cases in which, by reason of some special character, either of the plaintiff or of the defendant, he cannot sue or be sued unless by permission of the court. Such is the case of a receiver (1 Ves. jun. 165; 9 id. 335; 3 Bro. C. C. 88; 16 Wend. 410; 19 N. Y. 376); a committee of an habitual drunkard (Hall v. Taylor, 8 How. 428; and see Person v. Warren, 14 Barb. 488); action on injunction bond filed under 31st Rule of the late court of chancery (Higgins v. Allen, 6 How. 30); action on judgment (Graham v. Scripture, 26 How. 501); action on sheriff's bond (Rhinelander v. Mather, 5 Wend. 102; N. Y. Cen. Ins. Co. v. Safford, 10 How. 347); or a lunatic (Williams v. Cameron, 26 Barb. 172). In such cases the obtaining permission to sue should be alleged, stating how, when, and from whom obtained, in the same manner as in an action by a guardian for an infant he sets out the order appointing him guardian (Graham v. Scripture, 17 How. 501).

c. It cannot be set up as a defense to an action upon a bond or undertaking on file, either by demurrer or otherwise, that the action has been instituted without an order directing the bond or undertaking to be prosecuted (Cuddeback v. Kent, 5 Paige, 96). If such bond or undertaking is improperly put in suit, the court in which it is filed may, on motion, restrain the prosecution (id.) or set aside the proceedings (Harris v. Hardy, 3 Hill, 393; Higgins v. Allen, 6 How. 31). Permission is not required to sue on an undertaking given pursuant to § 335 (N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co. 10 How. 344); nor for an action by a sheriff to recover property levied upon by him under an attachment (Kelly v. Breusing, 33 Barb. 123).

d. Complaint must agree with summons in description of parties. In contemplation of law the complaint, although served with the summons, is a subsequent step in the procedure. If, therefore, the complaint differs from the summons, it is the complaint, not the summons, which is ir regular (Tuttle v. Smith, 14 How. 395; 6 Abb. 336). To take advantage of such an irregularity, the motion should be to set aside the complaint, not the summons (id.; see, however, Voorhies v. Schofield, 7 How. 51; Field v. Morse, id. 12).

Such a motion cannot be made until a copy of the summons has been served (Freeman v. Young, 3 Rob. 666). Where a plaintiff in a summons described himself as " Administrator," &c., and in the complaint did not so describe himself, and set forth a cause of action accruing to him in his own right, it was held that the complaint was irregular (Blanchard v. Strait, 8 How. 83); nor can a plaintiff, commencing his action as on his individual behalf, afterward change it into one for a claim held by him in a representative character (McMahon v. Allen, 12 How. 46; and see Eagle v. Fox, 28 Barb. 475). Where in an action against two defendants whose true names were Isaac N. Hart and Simon Spear, the copy summons and the complaint served on the defendant Hart, stated the names of the defendants as Isaiah N. Hart and Samuel Spear, and the copy summons served on the defendant Spear stated the names of the defendants as Israel N. Hart and Samuel Spear, but in the copy complaint served on Spear the defendants' names were stated as Isaiah Ñ. Hart and Samuel Spear-the summons and complaint were set aside as irregular (Elliot v. Hart, 7 How. 25); and where the summons served without the complaint was entitled Hannah Allen v. Ebenezer Allen, and the complaint afterward served was entitled Fanny Allen v. Ebenezer Allen, the plaintiff's name being Fanny Allen, the defendant moved to set aside all the proceedings for irregularity on the ground of the difference in the title of the action in the summons and complaint-it was held that the defendant asked for too much. That the complaint was irregular because the title of the action did not correspond with the summons, and that defendant should have confined his motion to setting aside the complaint. That the summons could not be amended without leave of the court, and that the plaintiff should, before serving her complaint, have moved for leave to amend the summons (Allen v. Allen, 14 How. 248. See ante, Names of parties).

a. The complaint should agree with summons as to cause of action. The complaint should agree with the summons, as to the statement of the cause of action (R dder v. Whitlock, 12 How. 208); and if it does not so agree, it is the complaint and not the summons that is to be deemed irregular (Ridder v. Whitlock, 12 How. 308; Boington v. Lapham, 14 id. 360; Johnson v. Paul, 14 id. 454; Shafer v. Humphrey, 15 How. 564; Davis v. Bates, 6 Abb. 15; Campbell v. Wright, 21 How. 13; Bender v. Comstock, 4 Rob. 644). And this appears to be the rule, whether the summons is served with or without the complaint (id.; Tuttle v. Smith, 6 Abb. 330; 14 How. 395; see, however, Hemson v. Decker, 29 How. 385; Brown v. Eaton, 37 How. 325). A general appearance is not a waiver of the irregularity, even when both summons and complaint are served together (id.) But demurring or answering will be a waiver of such irregularity (Campbell v. Wright, 21 How. 9). It is too late at the trial to object that the summons and complaint do not agree as to the cause of action (Willet v. Stewart, 43 Barb. 98). Although the motion should be to set aside the complaint, yet where it was to set aside the summons, specifying the irregularity complained of, and for such other or further relief, &c., it was held that under the demand of other relief the defendant might have an order setting aside the complaint (Boington v. Lapham, 14 How. 360). On a motion to set aside the complaint for not agreeing with the summons as to the nature of the cause of action, the court may allow plaintiff to amend the summons or terms (Norton v. Cary, 14 Abb. 364; 23 How. 469; Campbell v. Wright, 21 How. 9; McDonald v. Walsh, 5 Abb. 69; and see Dunn v. Bloomingdale, 14 How. 474); and the amendment may be allowed on appeal from the order setting aside the complaint, where the statute of limitations would be a bar to a new action (Tuttle v. Smith, 14 How. 405; 6 Abb. 336).

b. Where the summons in the form prescribed by subd. 1 of section 129, was served without any complaint, and the defendant not appearing, the plaintiff entered judgment as for want of an answer, his complaint, however, set forth a cause of action calling for a summons in the form prescribed by subd. 2 of section 129, for this variance between the summons and complaint the judgment was set aside (Field v. Morse, 7 How. 12).

a. Amount claimed.-Complaint should agree with summons as to amount claimed (see Johnson v. Paul, 14 How. 454).

b. Date.-The complaint need not be dated, nor state the time when the action was commenced (Maynard v. Talcott, 11 Barb. 569)..

Note to subd. 2

STATEMENT OF THE FACTS CONSTITUTING A CAUSE OF ACTION.

1. What are facts.

2. What are the facts to be stated.

3. How the facts are to be stated.

4. The facts necessary in particular actions.

5. Some miscellaneous rules.

6. For one cause of action only one statement allowed.

1. What are facts?

c. Facts.-The word facts means precisely what the term has always meant when applied to the subject of legal pleading (Dows v. Hotchiss, 10 Ñ. Y. Leg. Obs. 281; Carter v. Koezley, 14 Abb. 150). The words "facts constituting a cause of action," mean those facts which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of the facts (Wooden v. Strew, 10 How. 50). The facts required to be set forth are "physical facts" (Lawrence v. Wright, 2 Duer, 674); real traversable facts (Mann v. Morewood, 5 Sand. 566).

d. Questions of fact.-Negligence (Tobin v. Murison, 5 Moore's P. C. Cas. 110; Bernhardt v. Rensselaer R. R. Co. 19 How. 199; 32 Barb. 165; aff'd. 23 How. 166; Buckingham v. Payne, 36 Barb. 81; Mettlestadt v. Ninth Ave. R. R. Co. 4 Rob. 377; Ginnon v. Harlem R. R. Co. 3 Rob. 26; and see 9 Bosw. 536; 44 Barb. 424; but see Purvis v. Coleman, 1 Bosw. 321; Mangam v. Brooklyn R. R. Co. 36 Barb. 237; Foot v. Wiswall, 14 Johns. 304).

e. Diligent inquiry (Carroll v. Upton, 3 N. Y. 274).

f. Election or intention is a fact, and if material must be expressly found (Clift v. White, 12 N. Y. 538; and see Moss v. Riddle, 5 Cranch, 351; Griffin v. Cranston, 1 Bosw. 281; Miller v. The People, 5 Barb. 203; and 18 N. Y. 297; 20 Barb. 549; 21 N. Y. 12).

g. Unlawfully converted (Covell v. Hill, 6 N. Y. 381; Decker v. Matthews, 12 N. Y. 324; but see English v. Sherman, 13 How. 37; 14 How. 422.) h. Instigation and request (Ives v. Humphries, 1 E. D. Smith, 200).

63).

i. Reorganization (Hyatt v. McMahon, 25 Barb. 458).

j. As surety (Dow v. Platner, 16 N. Y. 567).

k. Necessity (McCullough v. Moss, 5 Denio, 507).

1. Possession (Parsons v. Brown, 15 Barb. 593; O'Callaghan v. Booth, 6 Cal.

m. Illicit trade (Ocean Ins. Co. v. Francis, 2 Wend. 72).

n. That "bill presented and payment demanded" (Graham v. Machado, 6 Duer, 514).

o. That plaintiff became the owner by purchase (Prindle v. Caruthers, 15 N. Y. 427).

p. Seized as of fee (Vigers v. Dean of St. Paul's, 14 Jur. 1017).

7. That a woman is a widow, or that a person is son of another (Reg. v. Inh. of Aberdaron, 1 New Mag. Cas. 51).

r. Reputed ownership (Edwards v. Scott, 1 M. &. G. 962; 2 Sc. N. R. 266). 8. Sound or unsound (Lewis v. Peake, 7 Taunt. 153).

t. Reasonable time (Fry v. Hill, 7 Taunt. 397; Pitt v. Shew, 4 B. & Ald. 206; Facey v. Hurdom, 3 B. & C. 213; Tenant v. Bell, 16 Law. Jour. Rep. M. C. 31; Burton v. Griffiths, 11 M. & W. 817; Sage v. Hazard, 6 Barb. 179; Conger v. Hudson River R. R. 6 Duer, 375; Serle v. Norton, 2 M. & Rob. 401; see Van Trot v. McCulloch, 2 Hilton, 272; Gallagher v. White, 31 Barb. 92; Green v. Haines, 1 Hilton, 254; Lawrence v. Ocean Ins. Co. 11 Johns. 241; and see 9 Abb. 124, 116; 37 How. 104).