§ 113. (Am'd 1851.) Action by executor, trustee, &c.

An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with them the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.

a. The People.-Bonds taken in the name of the people should be prosecuted in the name of the people, and not in the name of the party in interest (Bos v. Seaman, 2 Code R.; The People v. Clarke, 21 Barb. 214; The People v. Norton, 9 N. Y. 176). As to actions on administrators' bonds, see Baggott v. Boulger, 2 Duer, 160; Annett v. Kerr, 28 How. 324; Conner v. Such, 9 Bosw. 321; The People v. Laws, 3 Abb. 450, 4 id. 292; The People v. Townsend, 37 Barb. 521, and suits against a municipal corporation (The People v. Mayor &c. of N. Y. 32 Barb. 35).

b. Public officers. Counties.-Actions by public officers as such should be brought in their individual names with the title of their office added (Paige v. Fazackerly, 36 Barb. 392; Gould v. Glass, 19 id. 179), and not merely in the name of the office (2 R. S. 473, §§ 92, 93; Superv'rs of Galway v. Stimson, 4 Hill, 136; Highway Comm'rs of Courtlandville v. Peck, id.) The statutory provisions relate only to actions by and not to actions against public officers, and an action against a county in the name of the board of supervisors, without naming the individuals who for the time being were supervisors of the several towns of the county, was held to be properly brought (Hill v. Board of Supervisors of Livingston Co. 12 N. Y. 63; see Weld v. Supervisors of Columbia, 9 How. 316; Magee v. Cutler, 43 Barb. 240; The People v. Halsey, 37 N. Y. 347); and so of an action against the Metropolitan Fire Department (7 Abb. N. S. 352).

c. Joint stock companies.—As to actions by or against joint stock companies composed of seven or more persons, see Laws 1849, p. 389; Laws 1851, p. 838; Laws 1853, p. 283; ante, note to s. 71; Corning v. Greene, 23 Barb. 33; Masterson v. Botts, 4 Abb. 130; Tibbetts v. Blood, 21 Barb. 655; Austin V. Searing, 16 N. Y. 113; N. Y. Marbled Iron Works v. Smith, 4 Duer, 362; De Witt v. Chandler, 11 Abb. 459; Robbins v. Wells, 18 Abb. 191.

d. Towns.-Actions by and against (Town of Duanesburgh v. Jenkins, 46 Barb. 295; Palmer v. Fort Plain R. R. 11 N. Y. 390).

e. Carriers. As to actions against companies for transporting passengers or goods, Laws 1836, p. 582.

f. Banks.-An association formed under the general banking law, may, by virtue of Laws of 1838, maintain an action either in the name of its president or in the name used in transacting its business (East River B'k v. Judah, 10 How. 135; Leonardsville B'k v. Willard, 25 N. Y. 574; Root v. Price, 22 How. 373). And the same rule applies to the case of an individual banker commencing and carrying on business under the general banking act (B'k of Havana v. Wickham, 7 Abb. 134; 16 How. 97). When the action is brought in the name of the president, the association is the plaintiff, and may be so referred to in the pleadings and proceedings (Root v. Trice, 22 How. 373).

g. School property.-Board of Education, actions by (see Laws 1851, p. 747; § 25, 1853, p. 635).

h. Death by wrongful act.-As to actions to recover compensation for causing death by wrongful act (Laws of 1847, p. 575), it is provided by Laws of 1849, p. 388, that every such action shall be brought by and in the names of the personal representatives of the deceased person. For an injury to a deceased wife, her surviving husband, as her administrator, cannot sus

tain an action; his right of action, if any, is as husband and not as administrator (Lynch v. Davis, 12 How. 323). The words "personal representatives" mean executors or administrators (Safford v. Drew, 3 Duer, 634). The right of action survives against the personal representatives of the wrong-doer (Yertore v. Wiswall, 16 How. 8); and is an assignable interest (Quinn v. Moore, 15 N. Y. 432; Doedt v. Wiswall, 15 How. 128). See in note to § 142, post, Injury causing death. The action may be maintained by the administrator of an infant who had no wife or family (Quinn v. Moore, 15 N. Y. 432; Keller v. N. Y. Cent. R. R. Co. 17 How. 102). The statute gives an action in every case in which the deceased party if living might have sued (id.)

a. Manufacturing companies.—As to actions against shareholders and stockholders in dissolved companies for manufacturing purposes, see 2 R. S. 311, § 7; Story v. Jarman, 25 N. Y. 214.

6 Lunatics, habitual drunkards, &c.—By Law of 1845, p. 91, "receivers and committees of lunatics and habitual drunkards may sue in their own names for any debt or demand transferred to them, or to the possession or control of which they are entitled as such receiver or committee." In all cases other than those expressly provided for by statute, the action must be in the name of the lunatic or idiot, by his next friend (M’Killip v. M'Killip, 8 Barb. 552). Semble, an habitual drunkard may bring an action in his own name without a next friend. It seems that actions to recover real property of idiots, lunatics, &c., must be in the name of such idiot, lunatic, &c. (Lane v. Schermerhorn, 1 Hill, 97; Petrie v. Shoemaker, 24 Wend 85). But the committee of an habitual drunkard may bring actions on promissory notes he received as such committee, in his own name, without describing himself as committee (Davis v. Carpenter, 12 How. 287). An action to set aside a bond and warrant of attorney executed by the lunatic, together with the judgment entered on such warrant, should be in the name of the committee of the lunatic (Person v. Warren, 14 Barb. 488). The remedy, where a lunatic is improperly proceeded against, is by application to the court appointing the committee, to restrain the prosecution of the suit, and to punish the plaintiff for contempt (Crippen v. Culver, 13 Barb. 424; and see Clarke v. Dunham, 4 Denio, 262; Re McLaughlin, 1 Clarke Ch. R. 113; Supreme Court Rule 85). The proper course for the creditor of an habitual drunkard who has a committee, is to apply on petition and notice for leave to sue the drunkard, or for a reference to inquire and report what is due the petitioner (Hall v. Taylor, 8 How. 428; Williams v. Cameron, 26 Barb. 172).

c. Covenant.-For a breach of covenant by a lessee, the lessor, or person standing in his place-the landlord at the time of the breach-is the proper person to bring the action (Beach v. Barrons, 13 Barb. 306).

d. Trustees of express trust.—Mercantile factors or agents doing business for others, but in their own names, are trustees of an express trust (Grinnell v. Schmidt, 2 Sand. 706). An auctioneer who, in his own name, sells goods for a third person, is the trustee of an express trust, and may sue without an assignment to him of the cause of action (Bogart v. O'Regan, 1 E. D. Smith, 590), unless his principal elect to bring the action in his name (Minturn v. Main, 7 N. Y. 224). The purchaser at a sale by auction, who is to pay the auction fees, is directly liable to the auctioneer (Muller v. Maxwell, 2 Bosw. 355). One who, as agent, executes a contract which does not disclose the name of his principal, is a trustee of an express trust (Morgan v. Reid, 7 Abb. 215; Rowland v. Phalen, 1 Bosw. 43; see ante, note to § 111). A mere ordinary 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. But if he has advanced upon the goods sold, or has guaranteed the sale, he may sue in his own name (White v. Chouteau, 10 Barb. 202). The consignee or indorsee of a bill of lading has not the right to sue upon a contract contained in the bill of lading, unless he is also the shipper or owner of the goods (Dows v. Cobb, 12 Baıb. 310). The nominal proprietor of an individual bank, who furnishes the securities to the comptroller, and

to whom the circulating notes of the bank are delivered by that officer, and in whose name as proprieter all the contracts and transactions of the bank are made and conducted, is a trustee of an express trust (Lurbank v. Beach, 15 Barb. 326). An assignee for the benefit of creditors, to whom, among other property, a policy of assurance was assigned after a fire had occurred, may sue in his own name to recover the loss (Mellen v. Hamilton Ins. Co. 17 N. Y. 615). An assignee of a demand in trust to pay certain creditors of the assignor, and the balance to the assignor himself, may bring an action in his own name, without joining the cestui que trusts as plaintiffs (Lewis v. Graham, 4 Abb. 106). On a promissory note given to an executor or administrator, on account of the decedent's estate, he may sue either individually or in his representative character (Bright v. Currie, 5 Sand. 433; Merritt v. Seaman, 6 Ñ. Y. 168). And so for a conversion of the property of the deceased (Shelden v. Hoy, 11 How. 15). A deputy sheriff holding an execution took a bond running to his principal, conditioned to indemnify the latter, and all persons assisting him in the premises;-held an action would lie in the name of the sheriff for the benefit of the deputy, without any assignment of the cause of action by the latter (Stillwell v. Hurlbert, 18 N. Y. 374). One partner is not ordinarily a trustee for his co-partner. "But one partner may be a trustee for his co-partner" (Secor v. Keller, 4 Duer, 420). An officer of a foreign corporation may maintain an action in his own name in behalf of his company (Myers v. Machado, 6 Abb. 198; 14 How. 149; Considerant v. Brisbane, 22 N. Y. 389); as to who is a trustee of an express trust, see Slocum v. Barry, 34 How. 320; Read v. Harris, 7 Rob 151; Cummins v. Barkalow, 4 Keyes, 514. a. As a trustee of an express trust may sue without joining with him the person for whose benefit the action is brought, it follows that he may be sued, and that the cestui que trusts are before the court by representation (Mead v. Mitchell, 5 Abb. 106). See ante note to § 111.

¿. Penal action.-Actions for penalties under the act to suppress intemperance (Laws 1857, ch. 628), should be in the name of "the Board of Commissioners of Excise" of the county; not in the names of the commissioners (Pomroy v. Sperry, 16 How. 211; B'd of Comm'rs v. Doherty, id. 46; Haight v. Benson, 18 How. 302). Actions for penalties under the act relating to the port-wardens and pilots of the port of New York, must be brought in the name of the master-warden of the port of New York (The People v. Deming, 1 Hilton, 271; 13 How. 441; and see Laws 1865, ch. 712). Suits by common informers are to be in the names of the informers (2 R. S. 481, § 5; Seward v. Beach, 29 Barb. 239). Actions for penalties under the law regulating the Brooklyn Fire Department must be in the individual names of the trustees (Trustees of Fire Department v. Acker, 26 How. 263); Cheese Factory Acts (Laws 1864, ch. 518; Laws 1865, ch. 361; Bridinbeker v. Hourd, 32 How. 289; Thompson v. Howe, 46 Barb. 287).

c. Boards of health.—Boards of health have not the capacity to sue or be sued (The People v. Supervisors of Monroe, 18 Barb. 567; Gardner v. N. Y. B'd of Health, 10 N. Y. 409).

d. Indians.—The Seneca nation of Indians may sue in their collective name (The Seneca Nation of Indians v. Tyler, 14 How. 109).

e. Receivers and sheriffs.-Receivers appointed pursuant to sections 244 and 298 of the code, and rule 92 of the supreme court, and sheriffs in the cases mentioned in section 232 of the code, may sue in their own names; and foreign receivers (see Runk v. St. John, 29 Barb. 585; but see Hope Mut. Ins. Co. v. Taylor, 2 Rob. 279).

f. Republic.-(The Republic of Mexico v. De Arangois, 5 Duer, 635). 9. Officer of foreign government.—(Peel v. Elliott, 16 How. 481'; 7 Abb. 433).

h. Persons not in being.—(Mead v. Mitchell, 5 Abb. 92).

¿. United States.-Actions on behalf of (7 Opin. Att. Gen. 50).

j. Town_superintendents.-Action on official bond of (Fuller v. Fullerton, 14 Barb. 59).

k. Religious societies.—(Bundy v. Birdsall, 29 Barb. 31).

$114. (Am'd 1851, 1857.) Married women.

When a married woman is a party, her husband must be joined with her, except that,

1. When the action concerns her separate property, she may sue alone;

2. When the action is between herself and her husband, she may sue or be sued alone,

And in no case need she prosecute or defend by a guardian or next friend.

a. How sued.-Married women may sue and be sued, in all matters relating to their separate estates, in the same manner as femes sole (Barton v. Beer, 21 How. 309; 35 Barb. 81; Morrell v. Cawley, 17 Abb. 76); an action for an assault on a married woman should be in her name, and by herself as sole plaintiff (Mann v. Marsh, 21 How. 372; Ball v. Bullard, 52 Barb. 141); and in an action by or against a married woman for contracts relating to her separate estate, her husband should not be joined (Draper v. Stovenel, 35 N. Y. 507; Palmer v. Davis, 28 N. Y. 242); and so in an action for conversion of the separate property of the wife (Ackley v. Tarbox, 31 N. Y. 564; Spies v. Accessory Transit Co. 5 Duer, 662), or for the recovery of possession of real property (Darby v. Callaghan, 16 N. Y. 71; and see 9 Abb. 402; 17 How. 563; and Merchants Ins. Co. v. Hinman, 34 Barb. 410; Newberry v. Garland, 31 Barb. 121). But if the husband is joined, and the defendant does not demur, the plaintiffs may recover (Ackley v. Tarbox, 31 N. Y. 564).

b. Torts. In an action against a married woman for trespass committed by her servants or by her cattle, her husband need not be joined as a defendant (Gillies v. Lent, 2 Abb. N. S. 455; Rowe v. Smith, 38 How. 37); but in an action for a tort by the wife, the husband should be joined (Matthews v. Fiestel, 2 E. D. Smith, 90; Malone v. Stillwell, 15 Abb. 425; Flanagan v. Tinen, 53 Barb. 587; and see Kowing v. Manly, 2 Abb. N. S. 379); for torts against the wife, she may sue alone (Mann v. Marsh, 35 Barb. 68), and she may sue alone for loss by a common carrier of her clothing and jewelry, the gift of her husband (Rawson v. Penn. R. R. Co. 2 Abb. N. S. 220), or for loss in a business carried on by her, by the seduction of a servant (Badgley v. Decker, 44 Barb. 577), but she cannot maintain an action against her husband for assault and battery (Longendyke v. Longendyke, 44 Barb. 366), or for slander or libel (Freethy v. Freethy, 42 Barb. 641), or ejectment (Gould v. Gould, 22 How. 441). She may sue her husband for converting her separate property (Whitney v. Whitney, 3 Abb. N. S. 350).

c. Necessaries. For necessaries furnished a wife, the husband is liable and should be sued alone (Main v. Stephens, 4 E. D. Smith, 86). As to making the wife's separate estate liable for necessaries under the statute, see Valentine v. Lloyd, 4 Abb. N. S. 371.

d. Joint interest.-If there is a joint interest in the husband and wife, the husband should join, or the suit would be defective (Smith v. Kearney, 9 How. 468; Ingraham v. Baldwin, 12 Barb. 9; Conde v. Shepherd, 4 How. 75; Ripple v. Gilburn, 8 How. 456; Hillman v. Hillman, 14 How. 456; Goelet v. Gori, 31 Barb. 314).

e. Ante-nuptial debt.-An action may be maintained against the husband and wife jointly for any debt of the wife contracted before marriage (Laws of 1853, p. 1057).

f. By the Revised Statutes. —A married woman may sue alone, if her husband be sentenced to the State prison for life; and in actions relating to real property, if husband and wife are impleaded, and the husband absent himself and will not defend the wife's rights, the wife may apply before judg

ment, to be allowed to defend without her husband (Chapman v. Lemon, 11 How. 235).

See note to subd. 4 of sec. 144, post, and note to subd. 2 of sec. 142, Married woman.

§ 115. (Am'd 1849.) Infant to appear by guardian.

When an infant is a party, he must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge.

a. Infant plaintiff should have a guardian appointed before the action is commenced (Hill v. Thatcher, 3 How. 407), but the omission to have a guardian appointed is an irregularity only; it may be waived, and is cured by the plaintiff coming of age pending the action (Rucker v. Puckhofer, 9 Bosw. 638), or by the defendant not raising the objection. Where an infant sues without a guardian, the defendant may either move to set aside the proceedings (Freyburg v. Pelerin, 24 How. 202), or set up the infancy in his answer (Tread. well v. Bruder, 3 E. D. Smith, 597). Where the infant is a married woman suing with her husband, no guardian is necessary (Cook v. Rawdon, 6 How. 233). Rule 60 of supreme court does not apply to guardian for the plaintiff (id.)

b. Infant defendant.-Where the defendant is an infant a guardian must be appointed for him, or a judgment taken against him will be irregular (Kellog v. Klock, 2 Code R. 28; Boyley v. McAvoy, 29 How. 278; see Parks v. Parks, 19 Abb. 161); and the infant cannot waive the irregularity (Fairweather V. Satterly, 7 Rob. 546).

e. Lunatic defendant.-To authorize the appointment of a guardian ad litem for a lunatic, idiot, &c., defendant, the summons must have been served personally or by publication upon the lunatic, &c. (Rogers v. McLean, 10 Abb. 306).

d. Infant coming of age, pending the action, does not render any change in the title necessary (Mitford Pl. 124, n.)

e. Guardian on appeal.-On an appeal where one of the parties is, after the appeal, ascertained to be an infant, the court, upon application, will appoint a guardian ad litem (Fish v. Ferris, 3 E. D. Smith, 567; and see Moody v. Gleason, 7 Cow. 480).

§ 116. (Am'd 1852, 1862, 1863, 1865). Guardian, how appointed. The guardian shall be appointed as follows:

1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or, if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant; if made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides.

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of