MYERS a. MACHADO

MYERS a. MACHADO. New York Superior Court; Special Term, February, 1857. Again, October, 1857. Complaint.—Demurrer.—Beal Party in Interest.—Trustee' op Express Trust.—Action by Officer op Corporation or-. Joint-stock Company. An officer of a foreign hank brought an action here in his own name, upon a bilb of exchange belonging to the bank, and alleged in his complaint that he was such officer, and “ duly authorized” to commence any and all proceedings at law, &c., on behalf of the bank, and that this action was brought on behalf of the bank. Held, that the complaint was bad on demurrer for not setting forth the- . existence and terms of the foreign law, if any, under which the bank was organized, and an authority given to the plaintiff to sue on its behalf. An allegation, that the plaintiff was duly authorized to bring the action, is not am allegation of a fact, but merely of a conclusion of law. It seems, that a complaint, which contains the proper averments, setting forth a bill of exchange, upon which the defendant is liable, should not be held bad on-demurrer merely on the ground that it does not state facts sufficient to constitute a cause of action, even though it shows that the title to the bill is in a thirdpai'ty, and fails to show that the plaintiff is entitled to bring an action upon it.*" An officer of a foreign corporation or company may maintain an action here in hie-own name on behalf of his company, if his complaint states facts, showing hie-authority to sue on their behalf; for in such case he may be regarded as the trustee of an express trust. Form of a complaint in such an action. It seems, that section 111 of the Code,—which provides that actions must be prosecuted in the name of the real party in interest,—is to be construed with reference to the principle of representation which prevailed in the doctrine of' parties in chancery; and that, as a general rule, if the defendant will be perfectly protected by responding to the .plaintiff, and if there is no necessity, or substantial equity, in protecting the fund against the plaintiff himself, if recovered, the plaintiff may be regarded as the real party in interest, within the-meaning of that section, j- * Compare Palmer a. Smedley, Post, 205; White a. Brown (14 How. Pr. R.,. 282); Johnson v. Kemp (11 How. Pr. R., 186) ; and The Bank of Lowville v. Edwards (11 lb., 216). -j- Compare Killmore is. Culver (24 Barb., 656). February, 1857.—Demurrer to complaint. The action was against the. defendant as drawer of a bill of' exchange, discounted by and belonging to the Royal Bank of Liverpool, of which the plaintiff was an officer. The complaint was as follows. Superior Court of the City of Rew York. John Myers, Public Registered Officer of the Royal Bank of Liverpool, „ against John A. Machado. The above-named plaintiff complains of the above-named defendant, and says:— That he is one of the public registered officers of a certain banking company, duly constituted, created by and existing under the laws of the kingdom of Great Britain, and carrying on business at Liverpool, in said kingdom of Great Britain, under the name and style of The Royal Bank of Liverpool, and as such is duly authorized and empowered to commence any and all proceedings at law and equity on behalf of the said The Royal Bank of Liverpool; and that this suit is brought for the use and benefit, and on behalf of the said The Royal Bank of Liverpool. That the said defendant, on or about the 16th day of June, a. n. 1856, at the city of Rew York, made and subscribed his certain draft or bill of exchange, bearing date on the day and year aforesaid, and addressed the same to Messrs. Isaacs, Reader & Co. at Liverpool, England, and thereby requested the said Isaacs, Reader & Co. to pay to the order of Messrs. Fleming & Alden in London, England, the sum of one thousand pounds, sterling money, of the currency of Great Britain, in sixty days after the sight of said draft, therein called the first of exchange, for value received; and thereupon delivered the same to the said Messrs. Fleming & Alden, in London, who thereupon indorsed the same in blank; and the same, so indorsed, was transferred and delivered to the said The Royal Bank of Liverpool, who thereupon became and still are the owners and holders of the said draft or bill of exchange. That on the 25th day of June, a. d. 1856, the said draft was duly presented to the said Messrs. Isaacs, Reader & Co. at Liverpool, England, and the acceptance thereof duly demanded, which was refused; that thereupon said bill was duly protested for non-acceptance, and due notice of such protest for nonacceptance duly given to the defendant herein, and which was received by him. That when said draft or bill of exchange became due and payable, the same was duly presented for payment to the said Isaacs, Reader & Co., at Liverpool aforesaid, and payment thereof duly demanded, which was refused; that thereupon said bill was duly protested for non-payment, and due notice of the non-payment thereof duly given to the said defendant. That the said draft has not been paid, nor any part thereof; and that the said defendant is justly indebted to the plaintiff in the amount thereof, and damages at the rate of ten per cent, on said amount, on account of the non-payment thereof. And the said plaintiff further says, that at the time of the drawing and maturity of the said draft herein above described, the value of the total amount thereof in the lawful money of the United States of America, was the sum of forty-eight hundred and eighty-three' dollars and thirty-three cents; and that the damages at the rate of ten per cent, on the amount of said draft, at the time the same was protested for non-payment, in the aforesaid money, is the sum of four hundred and forty-four dollars and forty-four cents, making in total the sum of fifty-three hundred and twenty-seven dollars and seventy-seven cents, currency of the United States of America. That due notice of the protest of the said draft or bill of exchange for non-payment was duly given to the said defendant, on behalf of the plaintiff, on the 15th day of September, a. d. 1856, and payment of said principal sum duly demanded of the defendant, who refused, and still does refuse, to pay the same. ‘ Wherefore, &c. The defendant demurred, and specified the following as the grounds of his demurrer: First. That the complaint does not state facts sufficient to constitute a cause of action. Second. That the action is not prosecuted in the name of the real party in interest. Third. That the Royal Bank of Liverpool is not made a party to this action. / Fourth. -That it does not state whether the Royal Bank of Liverpool is a corporation. Fifth. That the members of the banking company of the Royal Bank of Liverpool are not made parties to this action. ■ Sixth. That the plaintiff is not authorized by the law of this State to bring this action. H. G. De Forest, for the plaintiff. E. C. Benedict, for the defendant. [MAJORITY — Duer, J. Hoffman, J.] Duer, J. (After stating the contents of the pleadings), Held, that the facts averred in the complaint constituted a valid cause of action, and that the demurrer on the first ground stated must be overruled. That the averment, that the plaintiff was duly authorized to bring the action on behalf of the bank, was not an averment of facts, but of a conclusion of law, and that the complaint wras defective in not setting forth the existence and terms of the act of Parliament, if any, under which the bank was organized, and an authority given to the plaintiff, as one of its registered officers, to sue on its behalf. That if it should appear that such an authority was given, the plaintiff could maintain the action in his own name on behalf of the bank, not only on grounds of international comily, but as trustee of an express trust, within a reasonable interpretation of the Code. That the demurrer could not be sustained upon any other of the specified grounds. Judgment for defendant, dismissing complaint, unless plaintiff, within forty days, serve an amended complaint, setting forth facts showing his authority to bring the action. Ho costs to either party, if complaint is so amended. October, 1857.—'Demurrer to amended complaint. The plaintiff served an amended complaint, which was as follows. Title of the Cause. The complaint of the plaintiff shows to the court:— That the said The Boyal Bank of Liverpool is a public joint-stock company or corporation, doing business at Liverpool, in the kingdom of Great Britain, and created and organized under and by virtue of a certain act of 'the Parliament of said kingdom of Great Britain, passed on the 26th day of May, a. d. 1826, and entitled “ An act for the better regulating of copartnerships of certain bankers in England, and for amending so much of an act of the thirty-ninth and fortieth years of the reign of his late majesty Kang George the Third, entitled 1 An act for establishing an agreement with the governor and company of the Bank of England, for advancing the sum of three millions towards the supply for the service for the year one thousand eight hundred,’ as relates to the same.” That by the fourth section of the act of Parliament aforesaid, it was enacted that any company organized under the provisions of the said act, should, upon its formation, designate and appoint two or more persons, members of such company and residents of England, to be the public registered officers of such company; and that, by the terms and provisions of the said act, such company might thereafter, from time to time, appoint new or additional public registered officers for the purposes (among others) hereinafter specified. That by the ninth section of the said act of Parliament it was enacted, that every company, organized under said act, should sue and be sued in the name of one of its public registered officers, as nominal plaintiff and defendant; and the said public registered officers were authorized and empowered to prosecute and defend in their own names, as nominal plaintiffs and defendants, and for and on behalf of their respective companies, all suits, both at law and in equity, brought by or against the said companies, while they should remain such public officers. That on or about the 24th day of January, a. d. 1848, the said The Boyal Bank of Liverpool, under and by virtue of the provisions and directions of the aforesaid act of Parliament, did duly designate and appoint the said plaintiff, John Myers, a member of said Boyal Bank and resident in England, to be a public registered officer of the said The Boyal Bank of Liverpool. That the plaintiff thereupon became and he still is such public registered officer of said Boyal Bank, and that by virtue of his said appointment, and of the aforesaid provisions of the said act of Parliament, he is fully and duly authorized and empowered to prosecute this action in his own name as such public registered officer, and that he brings this action as such public officer, and for and on behalf of the said The Boyal Bank of Liverpool. Then followed allegations setting forth the bill of exchange, in the same form as in the original complaint. The defendant demurred to the amended complaint, and specified as the grounds of his demurrer,— First. That the complaint does not state facts sufficient to constitute a cause of action in the plaintiff against the defendant. Second. Because it states in the alternative that The Boyal Bank of Liverpool is a joint-stock company or corporation, without stating which. Thi/rd. That the Boyal Bank of Liverpool is not made a party to the action. Fov/rth. That the members or associates of the Boyal Bank of Liverpool are not made parties to the action. Fifth. That the plaintiff is not authorized by the laws of this-State to bring this action. Sixth. That the complaint does not set forth the existence and terms of the act of Parliament, if any, under which the said bank was organized, and an authority given to the plaintiff to sue in its behalf. Seventh. That the complaint does not set forth any sufficient authority for the plaintiff to sustain this suit, or to sue in this case on behalf of said bank. Eighth. That the complaint does not set forth the terms of any designation or appointment of the plaintiff as a public registered officer of the said The Boyal Bank of Liverpool. Ninth. That the act of Parliament referred to in the complaint, so far as the same is described therein, refers to copartnerships, and not corporations, and does not refer to the said corporation called The Boyal Bank of Liverpool. Hoffman, J. (After stating the points which were decided by Hr. Justice Duer on the demurrer to the original complaint. supra.) I think that the amended complaint has removed the objections which prevailed against the original complaint. The allegations are sufficiently full and definite. The allegation of the complaint may be taken, I think, as affirming that the Royal Bank is a corporation, using that term as synonymous with ajowit-stock compa/ny. I think, however, that the question would not be varied, even if a company was organized under an act of Parliament, such as is stated, without being fully created a corporation. It might, perhaps, be sufficient to say that the decision of the judge has settled this question for my guidance at present. There are some suggestions tending, I think, to support it. Supposing even that the case is not governed by any one of the clauses- of the 113th section, the test prescribed in the 111th section is, that the action must be prosecuted in the name of the zeal party in interest. It is admitted that the rules as to parties were adopted mainly, from the course in chancery. The principle of representation was as prevalent in that court as the rule of actual interest in the party suing. And it may perhaps be safely stated as a rule, that if the defendant will be perfectly protected by responding to the plaintiff, and if there is no necessity or substantial equity in protecting the fund against the plaintiff himself, if recovered, the whole doctrine of the court is answered. Row a company or corporation, which appoints, under a law of the country creating it, a party endued with its whole power to sue, gives perfect protection to the defendant in paying, and assents to the reception of the demand by the agent. It is not contested that the Royal Bank of Liverpool could sue if a corporation. The Revised Statutes sanction this. The agent •so constituted seems to me the real party in interest within the 111th section, as interpreted by equity rules: The right of suing in an officer’s name may be conferred by "the crown upon any company, or body of persons associated together for any trading or other purposes (4 William IV., cap. 94, § 1). In our State, the law of 1849 (ch. 258) contains a similar provision as to joint-stock companies. It may be added that the case of Habicht v. Temberton (4 Sandf., 657) strongly supports the view taken upon the previous demurrer.