complaint should propose an accounting as between the firms (Cole v. Reynolds, 18 N. Y. 74). When a complaint contains a good cause of action upon contract against several defendants who are partners, it is not rendered demurrable by going on to allege the insolvency of the defendants and the confession of a judgment by them to defraud their creditors, and asking for an injunction and a receiver (Meyer v. Van Collem, 28 Barb. 230). A complaint which set forth a partnership between the parties, a dissolution, the existence of unsettled accounts, a balance in favor of plaintiff, and demands an accounting and judgment for the balance, shows a sufficient cause of action (Ludington v Taft, 10 Barb. 447).

a. Limited Partnerships.—In an action to reach and distribute the assets of a limited partnership,--the allegations of the complaint to show that the plaintiffs are creditors, must inform the defendants when, in what manner, and by what contracts it is claimed that they became indebted to the plaintiffs (Gray v. Kendall, 10 Abb. 66).

b. Mayor, &c., of New York.-In actions against the mayor, aldermen and commonalty of the city of New York, it must be alleged in the complaint that at least twenty days have elapsed since the claim in suit was presented to the comptroller of said city for adjustment, and that upon a second demand in writing, made on said comptroller after the expiration of said twenty days, the said comptroller neglected or refused to make an adjustment or payment (Laws 1860, ch. 379, § 2); complaint against mayor, &c., see Russell v. The Mayor, 1 Daly, 263.

c. Partition of personal property.-Complaint for (Tinney v. Stebbins, 28 Barb. 290).

d. Actions on statutes.-Penalties.—The provisions of 2 R. S. 482, § 10, are still in force (B'k of Genesee v. Patchin B'k, 13 N. Y. 314; The People v. Bennett, 6 Abb. 343). And in penal actions founded on a statute, a reference to the statute is usually but not necessarily (Brown v. Harman, 21 Barb. 510) made for the purpose of informing the defendant distinctly of the nature and character of the offense (Shaw v. Tobias, 3 N. Y. 190). An error in the reference may be disregarded (McHarg v. Eastman, 7 Rob. 137; O'Malley v. Reese, 6 Barb. 658). In cases where no general form of complaining is given, the plaintiff must set forth the particular acts and omissions which constitute the cause of action; and where the general form of pleading allowed by 2 R. S. 482, § 10, is resorted to, the section of the statute imposing the penalty must be accurately referred to (The People v. Brooks, 4 Denio, 469; Cole v. Smith, 14 Johns. 193; Bigelow v. Johnson, 13 id. 428; and see 17 Wend. 86; City of Utica v. Richardson, 6 Hill, 300).

e. A public statute need not be recited or referred to in pleading, and all that seems material is that enough be stated to bring the case within the statute (Carris v. Ingalls, 12 Wend. 70; Bayard v. Smith, 17 id. 88; Goelet v. Cowdry, 1 Duer, 132; Bogardus v. Trinity Church, 4 Paige, 197; Cole v. Jessup, 10 How. 524; Morris v. The People, 3 Denio, 381; McHarg v. Eastman, 7 Rob. 137). In pleading a statute which is required to be passed by a three-fifths vote, it is not necessary to allege that such a vote was had (Wolfe v. Superv. of Richmond, 11 Abb. 270; 19 How. 370): The complaint need not negative a proviso in the section giving the penalty, furnishing mere matter of excuse (Bennett v. Hurd, 3 Johns. 438; Sheldon v. Clarke, 1 id. 513; Teel v. Fonda, 4 id. 403; Hart v. Cleis, 8 id. 41). But where a statute declares an act unlawful, and makes an exception in the enacting clause, and not in the proviso, the exception must be negatived (First Baptist Church v. Schenectady R. R. Comp. 6 Barb. 319; and see Dexter Plank Road v. Allen, 16 Barb. 15; Washburne v. Franklin, 28 Barb. 27). The complaint need not allege that the cause of action arose after the passage of the law; all that is requisite is to state a time when the cause of action arose subsequent to the time when the law went into operation: the time thus stated will be deemed, prima facie, the true time; and although the parties are not bound by the allegation as to time, yet if it appear that the transaction occurred at a time not within the statute, it will be ground for a nonsuit (Brown v. Harmon, 21 Barb. 510;

and see O'Malley v. Reese, 6 Barb. 658). Where the statute giving the cause of action prescribes what the plaintiff shall state in his complaint, and requires a reference to be made to the statute, in such a case the statute requirement must be complied with, or the plaintiff cannot recover (Schroeppell v. Corning, 2 N. Y. 132; and see 17 Wend. 86).

a. In a complaint for using unlawful weights (1 R. S. 779, § 37), it is not necessary to allege that the defendant knowingly used them (Bayard v. Smith, 17 Wend. 88).

b. Complaint against railroad company for not ringing bell on approaching a crossing (Wilson v. Rochester & Syracuse R. R. Co. 16 Barb. 167).

c. See Bonds, Commissioners of highways, Injury causing death, Public officer, Railroad act, and note to § 163, post.

d. Personal property.-An action to recover possession of personal property will lie, although the goods, the subject of the action, have been previously transferred by the defendant to some other person, and are not under the manual control of the defendant at the time the action is commenced (Van Neste v. Conover, 20 Barb. 547).

e. A complaint which alleged that defendants became possessed of and wrongfully detained from plaintiff the goods and chattels described, to the value of $1,500, and demanded judgment for that amount, was held after verdict to state facts sufficient to constitute a cause of action; and semble that it would have been good on demurrer, and was not even liable to objection for want of definiteness or certainty (Hunter v. Hudson River Iron and Machine Co. 20 Barb. 493). Questioned by Bosworth, J., in Allen v. Wilcox, MS.

f. The innocent holder of the personal property of another cannot be said to have converted it, i. e., to wrongfully withhold it from the owner, until it has been demanded of him by the owner and he has refused to deliver it, or until by some act of his he has rendered the demand and refusal an idle ceremony; and there cannot be a conversion unless by an act done with intent to convert it to his own use or that of some third person, or unless the act had the effect to destroy it or to change its quality (Fouldes v. Willoughby, 8 M. & W. 540; Tallman v. Turck, 26 Barb. 167; Scovill v. Griffith, 12 N. Y. 516). Where the taking is wrongful no demand is necessary before action (N. Y. Car Oil Co. v. Richmond, 6 Bosw. 213; 10 Abb. 193; Moses v. Walker, 2 Hilton, 536); but where defendant obtained possession without wrong a demand is necessary (see post, Request or Demand). To charge that defendant "converted and disposed" of the property to his own use is the "usual form of alleging a conversion. It is not necessary to state the manner in which the defendant converted the property, but the simple allegation that he has done so is sufficient" (Decker v. Matthews, 12 N. Y. 324).

g. A complaint "that defendant took and converted to his own use one black horse of the value of $175, the property of A. P.; that afterward said A. P. sold and assigned said horse to the plaintiff, of which the defendant had notice; that plaintiff had demanded possession of said horse, which defendant refused; and claimed judgment for the recovery of said property, and damages for the detention,"-held sufficient (Vogel v. Babcock, 1 Abb. 177).

h. In action by a vendor to recover goods obtained from him by false representations, if the plaintiff, instead of complaining in the general form as in replevin, undertakes to state the facts out of which the cause of action arose, he must show that the defendant was insolvent at the time of the purchase, that defendant knew of such insolvency (McCracken v. Cholwell, 8 N. Y. 133); that the vendor was induced to part with his goods by the false representations of the vendee, or that the vendee, remaining silent as to his condition, got possession of the goods without any intention to pay for them (Buckley v. Artcher, 21 Barb. 585).

i. In an action to recover damages for the detention of personal property, it is not necessary to set forth the plaintiff's title in the complaint otherwise than by a genaral averment of ownership (Heine v. Anderson, 2 Duer, 318). It is not sufficient to allege that the plaintiff is entitled to the possession of the

goods, and that they are the property of him, the plaintiff, by virtue of attachments duly issued by justices of the peace, and delivered to the plaintiff, as a constable, to be executed (Vandenburgh v. Van Valkenburg, 8 Barb. 217; Bond v. Mitchell, 3 Barb. 304; see, however, Kissam v. Roberts, 6 Bosw. 154). An allegation that the plaintiff" was the owner and entitled to the immediate possession of the goods," was held to be an allegation of fact (Davis v. Hoppock, 6 Duer, 256). The complaint should show a wrongful taking, and that is sufficiently shown by an allegation that the defendant took the property of the plaintiff and unjustly detained it. Such an allegation imports a tortious taking (Childs v. Hart, 7 Barb 370; Till v. Beyer, 6 Trans. App. 143; 38 N. Y. 162). In an action for levying upon property exempt from execution, it is not necessary to allege in the complaint that the property was exempt from execution (Stevens v. Somerindyke, 4 E. D. Smith, 418).

a. Public officer.-In an action by an officer of a foreign corporation in his own name, on a bill or note, the property of such corporation, the complaint should state the existence and terms of the foreign law under which the corporation was organized, and which authorizes the plaintiff to sue in its behalf (Myers v. Machado, 14 How. 149; 6 Abb. 198).

b. Railroad act.-In an action under the railroad act of 1850, against a stockholder, to recover for services performed for the railroad company, the complaint must show that the services were rendered by a laborer or servant to the company (Boutwell v. Townsend, 37 Barb. 205.) Complaint against railroad company under § 53 of the General Railroad act (Hempstead v. N. Y. Central R. R. Co. 28 Barb. 486). Requisite of a complaint in an action by a trustee respecting the trust fund arising under a railway mortgage (Coe v. Beckwith, 10 Abb. 296).

c. Recognizance.-The complaint need not set out the facts which show the officer had jurisdiction (Champlain v. The People, 2 N. Y. 83; The People v. Millis, 5 Barb. 511; The People v. Kane, 4 Denio, 530); nor the order directing the prosecution of the recognizance (The People v. Blankman, 17 Wend. 252). If the recognizance was taken out of court, the complaint should allege that it was filed and recorded in court (The People v. Van Epps, 4 Wend 387); but this requirement is satisfied by a reference to the recognizance as a record (The People v. Huggins, 10 Wend. 464). It seems it should be alleged that the defendant's default for not appearing was entered of record, and that the bail did not produce him; but these particulars are imported in an averment that the principal, though called, did not appear (id.)

d. Seneca Nation of Indians.—In an action brought by the Seneca Nation of Indians, it is not necessary that they aver their act of incorporation, or their authority to sue in courts of this State (The Seneca Nation of Indians v. Tyler, 14 How. 109).

e. Fraudulent deed. In a complaint to set aside a fraudulent deed, it is sufficient to charge that the assignment was made to hinder, defraud and delay the creditors of the assignor, and that it is therefore fraudulent and void it need not point out the particular features or clauses of the deed which are objected to (Jessup v. Hulse, 29 Barb. 539; see Hastings v. Thurston, 10 Abb. 418; Wilson v. Forsyth, 24 Barb. 106; Am. Ex. Bank v. Webb, 15 How. 193).

f. Set aside judgment.-Requisites of complaint to set aside a judgment (Hamel v. Grimms, 10 Abb. 150).

9. Against shareholders.—As to complaint in actions by creditors of manufacturing corporations in the county of Herkimer, see Herkimer Co. B'k v. Furman, 17 Barb. 116; Walker v. Crain, id. 119; see Stockholder.

h. Sheriff.-Form of complaint against a late sheriff for not delivering execution debtor in his custody over to his successor (French v. Willett, 10 Abb. 99; 4 Bosw. 649); for an escape (McCreary v. Willett, 4 Bosw. 463; Renick v. Orser, 4 Bosw. 384). In an action for not executing process, complaint need not state all the steps in the action; it will be sufficient if it states enough to show jurisdiction to issue process, and then allege that the process

was duly issued (French v. Willett, 10 Abb. 99). Form of complaint by sheriff to recover property levied upon by attachment (Kelly v. Breusing, 32 Barb. 601; aff'd 33 Barb. 123).

a. Specific performance.-Complaint for (Richards v. Edick, 17 Barb. 261).

b. Stakeholder.-Complaint against a stakeholder to recover deposit on an illegal wager (O'Malley v. Reese, 6 Barb. 658).

c. Stock broker. Complaint against stock broker for damages for selling plaintiff's stock in violation of instructions (Clarke v. Meigs, 22 How. 340; 13 Abb. 467).

d. Stockholders of corporations.-In an action against a stockholder of a corporation formed under the statute for the formation of corporations for manufacturing, &c., purposes (Laws of 1848, ch. 40), founded on a judgment recovered against such corporation, the complaint must allege the recovery of such judgment, and the issuance of an execution and its return unsatisfied, and facts sufficient to show the original cause of action against the company (Witherhead v. Allen, 3 Keyes, 562; 3 Trans. App. 258; and see Perkins v. Church, 31 Barb. 84; Ogden v. Rollo, 13 Abb. 300; House v. Cooper, 16 How. 294; Young v. N. Y. & Liverpool Steamship Co. 15 Abb. 70; Vanderbilt v. Garrison, 3 Abb. 361; Coffin v. Reynolds, 37 N. Y. 640; Lindsley v. Simonds, 2 Abb. N. S. 69).

e. Rent.-In an action for rent due, where there is a lease under seal, the plaintiff may elect to sue on the covenant, or he may sue for the use and occupation (Ten Eyck v. Houghtaling, 12 How. 523). The complaint, in an action by the landlord against an assignee of the lease, was held good, although it did not aver that the rent was unpaid, but merely that, although frequently requested, the assignee had refused to pay (Holsman v. De Gray, 6 Abb. 79). In a complaint against an assignee, it is not necessary to show how he became such assignee (Norton v. Vultee, 1 Hall, 384). See Covenant, Use and Occupa

tion.

ƒ. Undertaking.-(See Bond.) In an action on an undertaking given to discharge an attachment issuing out of a court of general jurisdiction, it is not necessary to allege that the court had jurisdiction to issue the attachment. All that need be alleged is the pending of a suit (Cruyt v. Phillips, 16 How. 120; 7 Abb. 205). The same was held in an action on a bond given on the granting of an injunction (Loomis v. Brown, 16 Barb. 325). In a complaint on an undertaking given by the defendant for the return of specific personal property, it is not necessary to allege the issuing an execution against the original defendant (Slack v. Heath, 1 Abb. 331; 4 E. D. Smith, 95; aff'd Co't App's, June, 1860; and see Morange v. Mudge, 6 Abb. 243; Livingston v. Hammer, 7 Bosw. 671).

g. In an action on an undertaking given by a defendant in a proceeding of claim and delivery, the complaint must state that the property was delivered to the defendant (Nickerson v. Chatterton, 7 Cal. R. 568). And in an action by an assignee of an undertaking in such a proceeding, it is sufficient for the plaintiff, by way of showing his title, to allege that the undertaking was duly assigned to him, without alleging that the judgment in the action was also assigned (Morange v. Mudge, 6 Abb. 243). If the undertaking is made to the plaintiff, no assignment is necessary (Decker v. Anderson, 39 Barb. 346).

h. In an action on an undertaking on appeal in the usual form, it is not necessary in the complaint to allege any notice of affirmance or demand of payment of the judgment (Heelmer v. Townsend, 8 Abb. 234; Wood v. Derrickson, 1 Hilton, 410; and see Gibbons v. Bernard, 3 Bosw. 635). Complaint on undertaking on arrest (Willett v. Lasalle, 19 Abb. 272; Gauntley v. Wheeler, 31 How. 137). On injunction (De Forest v. Baker, 1 Abb. N. S. 34).

i. Use and occupation.-[The material allegations are, (1) occupation by defendant; (2) by permission of plaintiff.] The statute giving an action for use and occupation applies only to the case of a demise, actual or implied (Smith v. Stewart, 6 Johns. 46; Osgood v. Dewey, 13 id. 240; Bancroft v. Ward

well, id. 489; Cort v. Planer, 7 Rob. 413). The action lies against a lessee by deed, holding over after the expiration of his term (Abeel v. Radcliff, 13 Johns. 297). But not against a tenant holding over, against whom summary proceedings are commenced immediately on the expiration of the term, and he ejected (Bradshaw v. Featherstonehaugh, 1 Wend. 134). The action will not lie where there has been no occupation, actual or constructive (Wood v. Wilcox, 1 Denio, 37; Cleves v. Willoughby, 7 Hill, 83; Glover v. Wilson, 2 Barb. 264; Crosswell v. Crane, 7 id. 191; Beach v. Gray, 2 Denio, 84) An occupation the defendant might have had if he had not voluntarily abstained from it, is sufficient to support the action (Westlake v. Degraw, 25 Wend. 669). The complaint need not aver how the relation of landlord and tenant arose between the parties (Waters v. Clark, 22 How. 104). A complaint which omits to allege the period of occupation, the rate of rent, and the time for which the rent is in arrear, may be indefinite and uncertain, but is not demurrable (id.) A complaint as follows: "That defendant is indebted to plaintiff in $300 for the use and occupation of certain lands [describing them], the property of the plaintiff, during the following years [describing them], for which plaintiff claims said sum of $300, for which sum plaintiff demands judgment, was held not to state facts sufficient to constitute a cause of action; that it did not show any relation of landlord and tenant, and none could be presumed from the facts stated (Hall v. Southmayd, 15 Barb. 32; Hurd v. Miller, 2 Hilton, 540). An averment that defendant occupied plaintiff's land, without saying it was by the plaintiff's permission, is no more sufficient than to say the plaintiff performed work for defendant, without saying it was done at his request (Bradley v. Davenport, 4 Conn. R. 4).

a. Where a plaintiff becomes the grantee and owner of premises at the time occupied by the defendants under an unsealed and unexpired lease, at a specified sum per annum, and becomes such owner, and assignee of such lease, with the assent of such tenants, and they continue to occupy the premises after notice of such facts, and that the plaintiff is their landlord, and without objection, the plaintiff can recover for subsequently-accruing rent, on a complaint which merely states that he is owner of the premises, and that the defendants occupied them at their request and by his permission, and that the use of them is worth $284.14. But he can only recover at the rate specified in the lease under which the defendants entered (Peckham v. Leary, 6 Duer, 494). See Rent.

b. Work and services.—If one person render services for another, without his request and against his will, he cannot recover therefor (Calkins v. Parker, 21 Barb. 275); and therefore on complaining upon an indebtedness for past service, it is necessary to aver that the service was performed upon request; otherwise, from all that would appear upon the record, the service may have been a voluntary courtesy (Comstock v. Smith, 7 Johns. 87; 6 Wend. 647). Such averment of request may be sustained by evidence of facts from which a request may be implied (Ingraham v. Gilbert, 20 Barb. 152). A subsequent implied promise is equivalent to a previous request, &c. (id.) A complaint for work and materials should state the kind of work and materials, and the time when done and supplied; where a complaint alleged that plaintiff had rendered services for defendant and furnished materials therefor, at the times, about the matters, and at the prices "specified in an account already delivered to the defendant," to which account plaintiff prays leave to refer, but no copy of such account was annexed to or inserted in the complaint,-held that the complaint was indefinite and uncertain, as to the nature of the services and materials, and the time at which they were rendered and supplied (Farey v. Lee, 10 Abb. 143).

c. A complaint which alleged that the defendant was indebted to the plaintiff for services for the defendant by the plaintiff done and bestowed as the attorney of the defendant, and at his request, and for money paid out and expended for the defendant at his request, previous to January, 1852, was after judgment held sufficient (Beekman v. Platner, 15 Barb. 550). Probably it was not sufficiently definite; for a complaint which alleged that the