$110. (Am'd 1849.) Acknowledgment in writing.

No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.

a. Prospective. This provision is wholly prospective. A debt barred when the code took effect is not revived by a verbal promise to pay made after that time (Esselstyn v. Weeks, 12 N. Y. 635; 2 Abb. 272; Wadsworth v. Thomas, 7 Barb. 445; see also Gillespie v. Rosekrantz, 20 Barb. 35; Glen Cove Mut. Ins. Co. v. Harold, id. 298; Pickett v. Leonard, 34 N. Y. 175; Coe v. Mason, 41 Barb. 612; McLaren v. McMartin, 36 N. Y. 88; 3 Abb. N. S. 345), but if the cause of action was not barred by any statute of limitation at the time the code took effect, but was barred afterwards, it can be revived by a parol promise (Van Alen v. Feltz, 1 Keyes, 332).

b. Payment.-In order to take a demand out of the statute by part payment, it must appear that the payment was made on account of the debt for which the action is brought. And it must further appear that the payment was made as part payment of a larger debt (Arnold v. Downing, 11 Barb. 554, and see Peck v. U. S. Mail Ship Co. 5 Bosw. 226). To make a part payment evidence of a promise to pay the balance, it must be voluntary on the part of the debtor and must occur under circumstances consistent with an intent to pay such balance (id.; Miller v. Talcott, 46 Barb. 167). A payment received in full of all demands will not take a case out of the statute (Berrian v. Mayor of N. Y. 4 Rob. 538; but see Carrington v. Crocker, 4 Abb. N. Y. 335). A payment by one joint, or joint and several, debtor does not revive the liability of the other (Van Keuren v. Parmelee, 2 N. Y. 523; Bogart v. Vermilya, 3 Code Rep. 142; 1 Code Rep. N. S. 212; Barger v. Durvin, 22 Barb. 68; Dunham v. Dodge, 10 Barb. 566; Tracy v. Rathbun, 3 Barb. 543; Payne v. Slate, 39 Barb. 634). One copartner cannot after the dissolution of the partnership do any thing to bind the other, without the authority of that other, or unless at his request (see Bruce v. Tilson, 25 N. Y. 194; Roberts v. Sykes, 8 Barb. 345; Winchell v. Hicks, 18 N. Y. 558, and see Munroe v. Potter, 22 How. 49; Bloodgood v. Bruen, 8 N. Y. 362; see 18 N. Y. 561).

c. An assignee in trust for creditors is not an agent authorized to renew a debt, or take it out of the statute, as against the assignor (Pichett v. Leonard, 34 NY. 175; Stuart v. Foster, 18 Abb. 305, affirmed in court of appeals; and see Creuse v. Defiganiere, 10 Bosw. 123).

d. Acknowledgment.-No acknowledgment or promise is sufficient evidence of a new or continuing contract to take a case out of the operation of the statute of limitations, unless contained in some writing signed by the party to be charged thereby (Hope v. Bogart, 1 Hilton, 543). What is a sufficient signing (see Rowe v. Thompson, 15 Abb. 377). An acknowledgment sufficient to take a case out of the statute must be an unqualified admission of the debt and show a willingness to pay it (Turner v. Martin, 4 Rob. 661; and see Berrian v. The Mayor of N. Y. id. 538; Loomis v. Decker, 1 Daly, 186; McNamee v. Tenny, 41 Barb. 495; Stuart v. Foster, 18 Abb. 305; 28 How. 273; Creuse v. Defiganiere, 10 Bosw. 123; Com'l Ins. Co. v. Brett, 44 Barb. 489; Sherman v. Wakeman, 9 N. Y. 85). Proceedings to foreclose a mortgage by advertisement is an acknowledgment of the existence of the mortgagor's right to redeem (Calkins v. Isbell, 20 N. Y. 147).

e. A promise not made to the creditor nor to any one acting in his behalf is not sufficient to revive a debt barred by the statute of limitations (Wakeman v. Sherman, 9 N. Y. 86; Bloodgood v. Bruen, 8 N. Y. 362).

TITLE III.

Parties to civil actions.

SECTION 111.

112.

Party in interest to sue.

Assignment of thing in action.

113. Actions by executor, trustee, &c.

114. Action by and against married women.

115. Infants, actions by and against.
116. Guardian, how appointed.

117. Who may be plaintiffs.

118. Who may be defendants.

119. One or more may sue or defend for all.

120. One action against the different parties to bills and notes. 121.

Action when not to abate.

122. Court to decide controversy, &c. Interpleading.

§ 111. (Am'd 1862, 1866.) Action by party in interest. Grantee of land held adversely.

Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.

But an action may be maintained by a grantee of land in the name of a grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision.

a. One cannot sue himself.-One and the same person cannot be plaintiff and defendant in the action (Sherwood v. Barton, 23 How. 537; Methodist Episcopal Church v. Stewart, 27 Barb. 553). A man cannot sue himself (Cole v. Reynolds, 18 N. Y. 76).

b. Who is a party.—A guardian ad litem is not a party to the action (Brown v. Hull, 16 T. R. 673; Jarvis v. Boyd, 5 Porter [Ala.] R. 388; Darrin v. Hatfield, Co't App. Dec. 1852, Selden's Notes; Sinclair v. Sinclair, 1 New Pr. Cas. 179; Millink v. Collier, 14 Jurist, 621). A stockholder in a corporation is a party to a suit brought against such corporation (Place v. Butternuts, Woolen Manf. Co. 28 Barb. 503).

c. A person named as defendant, but not served with process, is not a party to the action (Robinson v. Frost, 14 Barb. 536; Steigers v. Gross, 7 Mo.R. 261; Horton v. Payne, 27 How. 377; Norton v. Hayes, 4 Denio, 245; East River Bank v. Cutting, 1 Bosw. 636; see, however, Dodge v. Averill, 5 How. 8; Woods v. De Figaniere, 16 Abb. 1; 1 Rob. 607, 28 N. Y. 487); an exception is the

"

case of a married woman, see Foot v. Lathrop, 53 Barb. 183. "The former chancery practice is now adopted as to making parties (Wallace v. Eaton, 5 How. 100; Hollenback v. Van Valkenburg, 5 id. 284; 1 Code R. N. S. 33; Voorhis v. Childs' ex'r. 17 N. Y. 354). To the same effect (Brownson v. Gifford, 8 How. 395.

a. Imprisoned debtor.—An imprisoned debtor is equally subjected to be sued and prosecuted to judgment, and to be proceeded against in all the modes prescribed by law to enforce civil remedies, as if he were at large (Morris v. Walsh, 14 Abb. 387; Davis v. Duffie, 3 Keyes, 606; 4 Abb. N. S. 478; 8 Bosw. 617).

b. Authority to commence action.—Except in the action of ejectment, as to which see 2 R. S. 305, § 17; Howard v. Hnward, 11 How. 80; and 10 Wend. 568, the defendant is not ordinarily entitled to demand the production by an attorney of his authority to commence an action (Thayer v. Lewis, 4 Denio, 269); but the court may, in proper cases, require the attorney to produce his authority (Vincent v. Vanderbilt, 10 How. 324; and 1 Abb. 193), and may stay proceedings in the action or require security for costs (Comm'rs of Excise v. Purdy, 36 Barb. 266; 22 How. 506; 13 Abb. 434); the court will not ordinarily inquire into the fact whether the attorney is authorized to appear or not (Denton v. Noyes, 6 Johns. 296; Republic of Mexico v. Arrangois, 1 ̃Àbb. 438). The objection that an action is commenced without authority, cannot be taken by answer (Comm'rs of Excise v. Purdy, 36 Barb. 266; 22 How. 506; 13 Abb. 434).

c. Plaintiff's address.-The court has the right, and in proper cases will require the attorney of a plaintiff to disclose the place of residence of the plaintiff (Vincent v. Vanderbilt, 10 How. 324, and 1 Abb. 193; Harris v. Holler, 19 Law Journ. Q. B. 62; Johnson v. Birley, 5 B. & A. 540; Hamilton v. Wright, 37 N. Y. 505; Neal v. Holden, 3 Dowl. Prac. Cas. 493; Smith v. Bond, 11 M. & W. 326; 1 Dowl. & L. 287; Gynne v. Kirby, 1 Stra. 402; Hooper v. Harcourt, 1 H. Bl. 534; Bracely v. Dalton, 2 Stra. 705; Shindler v. Roberts, Barnes, 126; Hodgson v. Gamble, 3 Dowl. 174).

d. Grantee of lands.-Effect of provision as to (Hamilton v. Wright, 37 N. Y. 502; Towle v. Smith, 2 Rob. 489). The action may be brought by the grantee in the name of his grantor, without his consent, (Louber v. Kelly, 9 Bosw. 494.)

e Name.-An action may be brought by a party in the name by which he is known, although that is not his true name (Cooper v. Burr, 45 Barb. 10; and see Bank of Havana v. Magee, 20 N. Y. 356, and note to sec. 142, post, Names of parties.)

f. Official persons.-This section is inapplicable to suits by official persons in their name of office (Hoogland v Hudson, 8 How. 343.)

9. Real party in interest.-A plaintiff who has an absolute right to the money due on a note, is the real party in interest, although the payee of the note may be interested in the event of the suit, in such wise that if the note be not collected he will not receive any thing by reason of his indorsement and sale of it (Cummings v Morris, 3 Bosw. 560).

h. The fact that the plaintiff has not actual possession of the note sued upon, does not affect his right to recover upon it. It is sufficient if he has the right to the money due upon it (Selden v. Pringle, 17 Barb. 468; Hastings v. MKinley, 1 E. D. Smith, 273). Whether the plaintiff's title be legal or equitable is immaterial; if he have the whole interest, he may maintain the action (id).

A plaintiff who sues as the assignee of a cause of action in which he has no interest at the time of suit brought, cannot maintain his action by purchasing, after issue joined, the cause of action described in his complaint (Garrique v. Loescher, 3 Bosw. 579).

j. A written instrument, whereby the defendant promised "to pay V. C. as executive agent of the company, Bureau G. G. & Co., the sum of $8,000," is legally payable to the company represented by V. C., and not to V. C., the agent; and V. C. cannot maintain an action in his own name on such an instrument (Considerant v. Brisbane, 2 Bosw. 471; 22 N. Y. 389).

7

a. Possession of a negotiable bill or note is presumptive evidence of title (Mottram v. Mills, 1 Sand. 37, and see Wiltsie v. Northam, 5 Bosw. 428; Camden B'k v. Rogers, 4 How. 63; East River B'k v. Judah, 10 id. 135; Williams v. Brown, 2 Keyes, 486). The presumption is not repelled by showing that it came into his hands after it was due (James v. Chalmers, 5 Sand. 52; 6 N. Y. 214; and see Farrington v. Park B’k, 39 Barb. 645; see Potter v. Chadsey, 16 Abb. 146; the indorsee of a note for a consideration not to be paid till the note should be collected, is the real party in interest to maintain an action thereon (Cummings v. Morris, 25 N. Y. 625; see Killmore v. Culver, 24 Barb. 656; Anor. 16 Abb. 423; Levando v. Dunham, 1 Hilton, 114; Durgin v. Ireland, 14 N. Y. 322). Where a bond and mortgage are given to secure a debt, an assignment of the mortgage alone is a nullity (Cooper v. Newland, 17 Abb. 342; Merritt v. Bartholick, 34 How. 129). As to transfer of a demand for which a note has been given (Armstrong v. Cushney, 43 Barb. 340).

b. Where an agent makes a contract in writing in his own name and without disclosing his principal, the principal may sue in his own name (Erickson v. Compton, 6 How. 471; St. John v. Griffith, 2 Abb. 198); or the action may be in the name of the agent (Morgan v. Reid, 7 Abb. 215; Nelson v. Nixon, 13 Abb. 104). But a mere agent cannot prosecute in his own name (Redfield v. Middleton, 7 Bosw. 649; Poor v. Guilford, 10 N. Y. 273 ; Newberry v. Garland, 31 Barb. 121). Thus a mere merchandise broker, not acting under a del credere commission, cannot maintain an action in his own name to recover the price of goods sold by him for the owner, unless he has advanced upon the goods or guaranteed the sale (White v. Chouteau, 1u Barb. 202). See post, note to section 113.

c. A carrier can maintain an action in his own name for an injury to property entrusted to him to carry (Merrick v. Brainard, 38 Barb. 574).

d. The master of a ship, although not an owner, may sue for freight (Kennedy v. Eilau, 17 Abb. 73; 36 Barb 197).

e. An action against the trustees of a school district for wrongfully expelling a child from a common school, must be in the name of the child (Stephenson v. Hall, 14 Barb. 222).

f. The reversioner may recover for waste by a tenant, although after its commission he alienate the estate, and have no interest therein at the time the action is commenced (Robinson v. Wheeler, 25 N. Y. 252).

9. No one individual can maintain an action for specific performance of a public duty, imposed for the public benefit (Getty v. Hudson River R R. Co. 21 Barb. 617).

h. Property taken on execution is, in law, in the possession of the sheriff, and for any wrong in relation to such property, the action must be in the name of the sheriff Terwilliger v. Wheeler, 35 Barb. 620).

i. An action against a carrier for the loss of goods is properly brought in the name of the consignor when he is the owner of the goods (Price v. Powell, 3 N. Y. 322).

j. Where a trustee takes, in his individual capacity, security for trust funds, and dies, an action on such security cannot be maintained in the name of his successor as trustee; the action should be by his personal representatives (Renaud v. Conselyea, 5 Abb. 346).

k. An action under the statute "of betting and gaming," to recover money deposited as a stake on an illegal wager, must be in the name of the real depositor, although the name of another may have been used in making the wager (Ruckman v. l'itcher, 20 N. Y. 9).

7. An action on a bond executed by a putative father, and his sureties on an order of filiation, in whose name to be brought? (Hoogland v. Hudson, 8 How. 343).

m. Whether a sequestrator of an incorporated company, as such, can maintain an action (Brinton v. Woods, 19 How. 162).

n. The holder of a thing in action, as collateral security, may enforce payment of it (Nelson v. Edwards, 40 Earb. 280); and semble, payment of the prin

cipal debt would not effect the continuance of the action in his name (Greene v. Tallman, 20 N. Y. 197).

a. Where a policy of insurance is issued to A, loss, if any, payable to B, in case of a loss B may sue in his own name (Frink v. Hampden Ins. Co. 1 Abb. N. S. 343; and see Lane v. Columbus Ins. Co. 2 Code Rep. 65); and as to action by assignees of policies of insurance or of claims for losses (see St. John v. American Ins. Co. 13 N. Y. 31; Miller v. Hamilton Ins. Co. 17 N. Y. 609; Fowler v. N. Y. Indem Ins. Co. 23 Barb. 151; Courtney v. N. Y. City Ins. Co. 28 Barb. 116; Carroll v. Charter Oak Ins. Co. 38 Barb. 402).

b. Assignees for the benefit of creditors cannot assign a claim due to them, as trustees, to a third person, to collect the claim and appropriate the proceeds in accordance with the provisions of the original assignment (Small v. Ludlow, 1 Hilton, 189).

e An assignment by a married woman, of certain specified goods and chattels, "as well as all claims and demands for any portion of them," carries the right of action for the previous wrongful taking of any of the assigned goods (Sherman v. Elder, 24 N. Y. 381); and a general assignment of all property for the benefit of creditors, was held to pass a right of action for the conversion of promissory notes (Whittaker v. Merrill, 30 Barb. 389; and sce Westcott v. Keeler, 4 Bosw. 564).

d. One of the several partners may assign a debt due the firm (Everit v. Strong, 7 Hill, 585); and a surviving partner may assign a chose in action belonging to his late firm (Pinckney v. Wallace, 1 Abb. 82) But where one of

two partners, to whom a debt was due, made an assignment of my claim in a certain debt due me, and thereupon the assignee alone, and without joining the other partner, brought an action to recover said claim, held that he could not recover (Mills v. Pearson, 2 Hilton, 16).

e. Defense, not real party.-Defendant cannot show on the trial that plaintiff is not the real party in interest, unless that defense is set up in the answer (Savage v. Corn Exch. Ins. Co. 4 Bosw. 2).

No

f. Transfer of things in action.-The only change made by the code in respect to the transfer of a thing in action, is to transfer with the beneficial interest the right of action also in those cases where, before the code, a court [of equity] would recognize and protect the right of the assignee. rew right of action is created; no authority is given to assign a right of action which before was not assignable (Hodgman v. Western _R_R. Co. 7 How. 493; and Merchants' Ins. Co. of Buffalo v. Eaton, 11 N. Y. Leg. Obs. 140). As a general rule, all choses in action are assignable. But there are some exceptions to the above rule (see Willard's Equ. Juris. 460; Burrell on Assignments, pp. 65 to 69, and below). It is no objection to a suit by the assignee of a foreign executor that the assignment was made to avoid the difficulty arising from the incapacity of such executor to sue (Peterson v. Chemical B'k 32 N. Y. 10). A person cannot sell to another a debt against himself. A debtor has no assignable interest in debts owing by him (Van Scoter v. Lefferts, 11 Barb. 140). An assignment of a demand and a book account made by one under sentence of imprisonment in the State Prison is void (Miller v. Finkle, 1 Park. Cr. R 374). As to assignment of the assets of a corporation, see Nelson v. Eaton, 16 Abb. 119; Ogden v. Raymond, 5 Bosw. 26. The assignment of a bond by one of two joint obligees, partners, in the name of the firm, is void (Hudson v. McKenzie, 1 E D. Smith, 358). The widow of a man deceased, not being his executrix or administratrix, cannot assign his choses in action (Heidenheimer v. Wilson, 31 Barb. 636).

g. What may be assigned.—The extra allowance promised by the legislature to canal contractors, by the Laws of 1836, p. 201 (Munsell v. Lewis, 2 Den. 224).

h. A mere possibility, coupled with an interest (1 R. S. 725, § 35; Lawrence v. Bayard, 7 Paige, 76; and see Hinkle v. Wanzer, 17 How. U. S Rep. 368; Field v. Mayor of N. Y. 6 N. Y. 187; Stover v. Eycleshimer, 3 Keyes, 620).

i. Any interest in personal property, or a mere possibility, coupled with