h. Usury-A cause of action to avoid notes or other contracts, on the ground of usury, cannot be transferred. Boughton v. Smith, 26 Barb. 635. See Murray v. Judson, 9 N. Y. (5 Seld.), 73. i. Convict.-An assignment by a person under sentence of imprisonment in the State prison is void. Miller v. Finkle, 1 Park. 374. See 2 R. S. 701, § 19. A contract for convict labor may be assigned, but the original party will remain responsible to the State for the performance of his agreement. Horner v. Wood, 23 N. Y. (9 Smith), 350. j. Right of entry.-A mere right of entry for non-payment of rent, etc., is not assignable. Main v. Green, 32 Barb. 448. k. Ferry license.-A ferry license is in the nature of a personal trust and is not assignable. Blackwell v. Wiswall, 14 How. 257. 1. Assignment by widow. - An assignment by a widow of a chose in action belonging to her late husband, is void in the absence of proof that she is his legal representative. Heidenheimer v. Wilson, 31 Barb. 636. VII. GRANTS OF LANDS HELD ADVERSELY. a. Implied repeal.-The second para- | graph of this section has repealed, it would seem, by implication, the statute which made the taking of the conveyances, therein mentioned, a misdemeanor. Towle v. Smith, 2 Rob. 489. b. Authority to begin action. The grantee may bring the action without consulting the grantor, and it seems the grantor would be liable for the costs. Hamilton v. Wright, 37 N. Y. (10 Tiff.), 502; S. C. 5 Trans. App. 1. In which the object of the provisions of this section in relation to actions in name of grantors, etc., is said to be, to limit the ope ration of the original provision, and not to create any new authority. Where, before the statute of 1862, the grantor refused to allow the action to be brought in his name, an action was brought against the grantor and the adverse possessor, to have the latter adjudged to surrender possession to the grantor, and the title and possession to the plaintiff as against the grantor. It was held that such an action could not be maintained; that the action must be brought in the name of the grantor, and that prior to the statute of 1862 his consent was necessary. Lowber v. Kelly, 9 Bosw. 494, (500); Aff'g S. C. 17 Abb. 452. § 112. [92.] (Am'd 1849.) Assignment of a thing in action not to pre judice a defense. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due. I. EFFECT OF ASSIGNMENT ON DEFENSES. a. Change in practice.-Actual rights of assignor and assignee are not changed by the change in the practice. Myers v. Davis, 22 N. Y. (8 Smith), 489; Rev'g S. C. 26 Barb. 367; Beckwith v. The Union Bank of New York, 9 N. Y. (5 Seld.), 211; Aff'g S. C. 4 Sandf. 604; Butler v. New York & Erie R. R. Co. 22 Barb. 110; approved, McKee v. Judd, 12 N. Y. (2 Kern.), 622, 626. b. Assigned claim subject to equities.-The assignee takes the interest assigned, subject to all the defenses, both legal and equitable, against the assignor. Bush v. Lathrop, 22 N. Y. (8 Smith), 535; Western Bank v. Sherwood, 29 Barb. 383; Ainslie v. Boynton, 2 Barb. 258; Wood v. Perry, 1 Barb. 114; Solomon v. Holt, 3 E. D. Smith, 139; Mason v. Knowlson, 1 Hill, 218; Mead v. Gillett, 19 Wend. 397; Mangles v. Dixon, 18 Eng. Law & Eq. R. 82. The assigned claim is subject to all the equities existing at the time of the assignment. Roberts v. Carter, 38 N. Y. (11 Tiff.), 107; Rev'g S. C 24 How. 44; S. C. 9 Abb. 366, n; Commercial Bank of Rochester v. Colt, 15 Barb. 506. c. An assignee for the benefit of creditors is only entitled to the same rights and equities as the debtor possessed. Marine & Fire Insurance Bank of Georgia v. Jauncy, 1 Barb. 486; Mass v. Goodman, 2 Hilt. 275. d. Set-off can not be made to a demand not perfect at the time of the assignment (or before notice thereof). Williams v. Brown, 2 Keyes, 486; Myers v. Davis, 22 N. Y. (8 Smith), 489; Watt v. Mayor, etc. of New York, 1 Sandf. 23. A promissory note payable on demand, with interest, when transferred to a third party, three months after its date, although before demand, is open to defenses existing between the original parties Herrick v. Woolverton, 41 N. Y. (2 Hand) 581; Rev'g S. C. 42 Barb. 50; see Hirst v Brooks, 50 id. 334. But a premium note no due before the insolvency of the insurance company may be set off by the insured against the receiver of the company; it is a case of mutual credits. Osgood v. DeGroot, 36 N. Y. (9 Tiff.), 348; S. C. 2 Trans. App. 86; Pardo v. Osgood, 5 Rob. 348; Rev'g S. C. 2 Abb. N. S. 365. e. A judgment for costs-Recovered against an assignor for the benefit of creditors, without notice of the assignment, is not a set-off or other defense in an action by the assignee. Ogden v. Prentice, 33 Barb. 160. f. Actual notice of the assignment is not necessary to protect the assignee. Wilkins v. Batterman, 4 Barb. 47; but presumptive notice may be rebutted by proof. Williamson v. Brown, 15 N. Y. (1 Smith), 354. When a debtor, without notice of a previous assignment of his obligation, obtains a valid discharge from a dissolved partnership, the discharge is conclusive, as against the assignee. Huntington v. Potter, 32 Barb. 300. When a debtor has immediate cognizance of an assignment of his obligation, but neglects to give notice of his rights, he cannot interpose his set-off against the assignee. Tylee v Yates, 3 Barb. 222. Where a judgment debtor informed a subsequent assignee of the judgment that no part of it was paid, and at that time a part was actually paid, the judgment debtor was not allowed to interpose the payment as a set-off against such assignee, Rae v. Lawser, 18 How. 23. An assignee of a litigated claim is entitled to the benefits, and subject to the liabilities, of the assignor. Jordan v. Sherwood, 10 Wend. 622. And if he continues suit he will be liable for further costs also. Miller v. Franklin, 20 Wend. 630. The debtor of a judgment debtor, paid, by order of the judge, in supplementary proceedings, the amount of the claim of the | judgment debtor against him, and such payment was held to be a valid defense against the assignee of the judgment debtor who had not given notice of the assignment. Gibson v. Haggerty, 37 N. Y. (10 Tiff.), 555; S. C. 5 Trans. App. 143; Rev'g 23 How. 260; 15 Abb. 406. g. The admissions of a former owner of chattels or choses in action are inadmissible against the subsequent assignee. Schenck v. Warner, 37 Barb. 258, 263, and cases there cited; see Osborn v. Robbins, 36 N. Y. (9 Tiff.), 365; S. C. 2 Trans. App. 319; Rev'g S. C. 37 Barb. 481; but where there is complete identity of interest, previous admissions of assignor are admissible. Jones v. East Soc. M. E. Church of Rochester, 21 Barb. 161, (175.) The admissions of the mortgagor are inadmissible as against his subsequent assignee. Tousley v. Barry, 16 N. Y. (2 Smith), 497; Booth v. Swezey, 8 N. Y. (4 Seld.), 276; Smith v. Webb, 1 Barb. 231; Paige v. Cagwin, 7 Hill, 361. A written receipt is inadmissible as evidence against assignee of mortgage. Foster v. Beals, 21 N. Y. (7 Smith), 247. Declarations made after the transfer inadmis sible against the assignee. Garland v. Harrison, 17 Mo. (2 Ben.), 282. See Peck v. Yorks, 47 Barb. 131. Admissions of an assignor for benefit of creditors, made subsequent to the assignment, are not admissible as evidence. Hanna v. Curtis, 1 Barb. ch. 263. h. Exception in case of negotiable paper.-The latter clause of this section is restrictive, and limits the cases in which the right of set-off may exist; it confers no additional authority. Williams v. Brown, 2 Keyes, 486. Compare section one hundred and fifty. § 113. [93.] (Am'd 1851.) Executor or trustee may sue without the persons beneficially interested. person An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the 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. I. ACTIONS BY EXECUTOR OR ADMINISTRATOR. a. Foreign executors.-A foreign executor or administrator is precluded from suing in the courts of this State in the capacity of a representative; but the assignee of a thing in action, transferred by such executor or representative, may sue the debtor resident here. The disability of the representative is personal and does not affect the subject of the action; and in the application of this rule, executors and administrators, made or appointed under the laws of any other State in the Union, are regarded as foreign. Petersen v. Chemical Bank, 32 N. Y. (5 Tiff.), 21; S. C. 29 How. 240; Aff'g S. C. 2 Rob. 605. Objection that foreign administrator cannot sue shall be taken by demurrer. Robbins v. Wells, 18 Abb. 191; S. C. 26 How. 15; 1 Rob. 666. b. Executor or administrator.-On a demand due to the testator before his decease, the executor may sue either in his individual capacity or in his capacity as executor. Merritt v. Seaman, 6 N. Y. (2 Seld.), 168. An administrator may sue on a promissory note, made or indorsed to him as administra- | [§ 113. 432. See Whitford v. Panama Railroad Co. 23 N. Y. (9 Smith), 465, 489; 17 How. 104, 105, note. And the action may be sustained in case of death by wrongful act of an infant, such prosecution to be made by his pend upon the fact that the widow or next of administrator. id. The recovery does not dekin has some one dependent upon her for support. The right to maintain the action exists in all cases where the widow or next of kin suffers or may suffer pecuniary loss. Keller v. N. Y. Central R. R. Co. 17 How. 102; S. C. 28 Barb. 44, n. S. C. Aff'd, 24 How. 172; Leg. Obs. 150. The action may be maintained there is only a widow. id. The right of acwhere there is a next of kin only, or where tion is not given to the personal representatives of the deceased, but also against the personal representatives of the wrong-doer. Yertore v. Wiswall, 16 How. 8. If the plaintiff prosecutes for a conversion during the life of the intestate and commences his complaint: "A- - B- —, administrator of the goods, chattels and credits of CD-, late of deceased, plaintiff in this action complains," he will be regarded as pros-Safford v. Drew, 3 Duer, 627; S. C. 12 N. Y. ecuting in his individual capacity and not as administrator, unless there are other averments of appointment or allegations that he is administrator. But in an action for conversion after the death of the intestate, the administrator may sue in his own name properly, though the conversion took place before the granting of the letters of administration. The granting of letters of administration relates back to the time of the death and gives title by relation. Sheldon v. Hoy, 11 How. 11. c. Recovery of compensation for causing death.-Laws of 1849, ch. 256, amending Laws of 1847, ch. 450. person, In all cases in which the deceased if he had survived, might have maintained an action, the cause of action is transmitted to his personal representatives, and they may prosecute. Quin v. Moore, 15 N. Y. 1 (Smith), A husband of a wife whose decease is and not as a personal representative under the caused by a wrong-doer must sue as husband, statute. Lynch v. Davis, 12 How, 323. But it is held by the court of appeals that the husband cannot maintain an action for the negligent killing of his wife by another. Green v. Hudson River R. R. Co. 2 Keyes, 294; Aff'g S. C. 31 Barb. 260; 28 id. 9. See Hyatt Root, Conn. 90. v. Adams, 16 Mich. 180; Cross v. Guthery, 2 II. ACTIONS BY TRUSTEES a. Who is trustee.-One Paddon, who was, ostensibly, the principal in and proprietor of a certain business, but who was really a clerk for the firm, prosecuted one Williams (and another), apparently a clerk but really a member of the firm, for the amount of ten checks entrusted to him for deposit. Nine of the checks were for the price of goods consigned to Paddon, by third persons, for sale by him and sold according to consignment. Williams and Menck (to whom he had transferred the checks) refused to return the checks, and it was held that Paddon had legal title and could sue for the amount of the checks. Paddon v. Williams, 1 Rob. 340; S. C. 2 Abb. N. S. 88. Where plaintiffs were appointed trustees to receive subscriptions for the benefit of a public corporate institution, they were held to be trustees of an express trust, and not liable for costs, personally. Slocum v. Barry, 34 How. 320. Where a certain contract was assigned to a party, in trust, for the benefit of another, it was held that the assignee was a trustee of an express trust. Cummins v. Barkalow, 4 Keyes, 514. So of an assignment of chattels in trust. Reed v. Harris, 7 Rob. 151. But it was held that two of the directors of an incorporated company could not maintain an action against other of the directors, OF EXPRESS TRUST. company itself, to restrain the prosecution of some of the preferred stockholders, and the actions against the company, and to secure an accounting. Gould v. Thompson, 39 How. 5. b. Banking Institutions. - Laws of New York, 1838, ch. 260, § 21-Moneyed institutions formed under this law may sue either in the name of their president or in their corporate name. Leonardsville Bank v. Willard, 25 N. Y. (11 Smith), 574; Aff'g S. C. 16 Abb. 111; East River Bank v. Judah, 10 How. 135. tion, the fact that the association is in interest In actions by the president of the associais a matter of averment in the complaint. Root v. Price, 22 How. 372. may be assumed to be plaintiff for the purAnd when this is averred, the association poses of reference in subsequent pleading. id. An individual banker, under the banking bring his action in the name in which he law of 1848, is a corporation sole, and he may transacts his business. Bank of Havana v. C. Aff'd 20 N. Y. (6 Smith), 355; sub not. Wickham, 7 Abb. 134; S. C. 16 How. 97; S. Bank of Havana v. Magee. The plaintiff was nominally the proprietor of a bank; all contracts and transactions were in his name; held that he was a "trustee of might bring his action in his own name, and an express trust," under this section, and without uniting other parties in interest. Bur- | Bogart v. O'Regan, 1 E. D. Smith, 590; Mulbank v. Beach, 15 Barb. 326. ler v. Maxwell, 2 Bosw. 355. c. Common carriers.-See Laws of New York, 1836, ch. 385. d. Agents, factors and brokers.When the agent contracts in his own name, he is the "trustee of an express trust," within the meaning of this section. Morgan v. Reid, 7 Abb. 215; and in such cases either the principal or the agent may sue. Erickson v. Compton, 6 How. 471. The plaintiff, acting in behalf of Jacobsohn, and others, who were interested in contracts made for the appearance of certain artists at Niblo's Theatre, or Opera House, in New York, by an agreement, the memorandum of which was set forth in the complaint, transferred the said artists to the defendants, committee of arrangement of the Italian Opera at the Academy of Music in said city. The following clause in the agreement: "Memorandum of agreement made 5th day of May, 1855, between David Rowland on the one part, acting in behalf of Isaac Jacobsohn and others, interested in the contracts and engagements of sundry artists recently introduced into this country through the medium of Messrs. Ullman and Strakosch," etc. was interpreted by the court to constitute the plaintiff, Rowland, a "trustee of an express trust," and it was held that he could maintain an action in his own name. Rowland v. Phalen, 1 Bosw. 43. It has been supposed that the words “express trust," in this section, refer to trusts of land authorized by the Revised Statues, and which are therein termed express trusts." It is not necessary, however, to give to the words this restricted meaning. In fact, the last clause of the section precludes any such construction. They are capable of a more extensive meaning, so as to include all contracts in which one person acts in trust for, or in behalf of another. Of this kind are contracts made by factors and other mercantile agents, who act in their own names, but for the benefit of, and without disclosing their principles. Grinnell v. Semidt, 3 Code R. 19; S. C. 2 Sandf. 706. It was claimed by the plaintiffs in an action, who were mere merchandise brokers, that if they were nothing more than ordinary brokers, they would be entitled to recover; but the court held, that the authorities did not sustain a rule so unqualified-limiting the rule to the case of persons selling under a del credere commission, or of brokers or factors who had made advances upon the goods sold by them, or auctioneers, or persons having some special interest in the subjct matter of the agreement. White v. Chouteau, 10 Barb. 202. An auctioneer who sells goods for a third person and in his own name, is entitled to bring an action under this section without joining the other party in interest and without an assignment to him of the cause of action. Brown v. Cherry, 38 How. 352, 359; It is not necessary for the auctioneer to prove that he has a special property or interest in the subject-matter in order to maintain his action, for that results, as a matter of course, from his position as an auctioneer. Minturn v. Main, 7 N. Y. (3 Seld.), 220; Aff'g S. C. 13 Sandf. 50; sub nom. Minturn v. Allen. e. Assignees.-One Halderman obtained from the war department an order in favor of the defendant for the delivery of twenty-six thousand Enfield rifles, and was to receive for this kindness and service one-fourth of the profit realized upon each delivery, in cash. Soon after, Halderman assigned the contract to the plaintiff Cummins, in trust for his wife: held, that the plaintiff was a trustee of an express trust, within the meaning of this section, and the action was properly brought in the name of the assignee. Cummins v. Barkalow, 4 Keyes, 514. The legal ownership and the legal right of possession, as against every one but the cestui que trust, is in the trustee created by an assignment, and he may sustain an action in his own name against any one who shall disturb Reed v. Harris, 7 Rob. 151. him or his cestui que trust in such possession. An assignee of an insurance policy, after loss, for the benefit of creditors, may maintain an action in his own name to recover the loss; the cestuis que trust should not be made parties unless it involves a determination of their rights under the instrument creating the trust. Mellen v. Hamilton Fire Insurance Co. 17 N. Y. (3 Smith), 615; Aff'g S. C. 5 Duer, 101. Where an assignment of a demand was made for the benefit of creditors, the balance of the proceeds to be paid to the assignor; it was held that the assignee could sustain an action in his own name. Lewis v. Graham, 4 Abb. 106. f. Corporations.-Subscription notes or contracts, purporting on their face to be made with the executive agent of a foreign corporation, by which said agent was payee of a certain sum, the consideration moving from the foreign corporation, may be sued on by the agent in his own name. Considerant v. Brisbane, 22 N. Y. (8 Smith), 389; Rev'g S. C. 2 Bosw. 471. And it does not matter whether the foreign organization be a company or corporation, the officer appointed by such organization to sue, is a "trustee of an express trust," and may sue in his own name. Myers v. Machado, 6 Abb. 198; S. C. 14 How. 149. Where a religious society has been duly and legally incorporated, the trustees cannot sue in their individual characters, but must bring their action in the corporate name or title of the society. Bundy v. Birdsall, 29 Barb. 31; 3 R. S. 2d ed. 208, § 4; Van Deuzen v. Trustees of Presbyterian Congregation at Fort Edward, 3 Keyes, 550; S. C. 3 Trans. App. 39. V and whether the act of 1851 gives authority to the officer, allowed by the statute in the case of such associations to prosecute in his own name, to maintain suit against a member of the association,-quere. Id. It seems that the act of 1865, chap. 561, gives this right of action to the treasurer of a cheese factory for the recovery of a penalty, the offense being committed by one of the members of the association. id. The provisions of the act of 1849 are applicable only to unincorporated companies, since the 5th sec g. Associations.—Any joint-stock company or association, consisting of seven or more shareholders or associates, may sue and he sued in the name of the president or treasurer, for the time being, of such jointstock company or association; and all suits and proceedings so prosecuted by or against such joint-stock company or association, and the service of all process or papers in such suits and proceedings on the president or treasurer, for the time being, of such jointstock company or association shall have the same force and effect as regards the joint❘tion of the act declares that nothing contained rights, property and effects of such joint-stock company or association, as if such suits and proceedings were prosecuted in the names of all the shareholders or associates in the manner provided by law. Laws of 1849, ch. 258; 1851, ch. 455; 1853, ch. 153. These statutes confer no right to sue except in cases where the shareholders or associates could before have sued; their purpose was to avoid the inconvenience of uniting all the shareholders or associates as parties. Corning v. Greene, 23 Barb. 33. See 26 N. Y. (12 Smith), 472, opinion. The act of 1851 extends the act of 1849, its rights and privileges, to any company or association, composed of seven persons or more who have a joint interest in any property or chose in action. "If the members organizing the association are seven in number, or more, and they have a treasurer and property, or rights of action, or demand owned by them jointly or in common, they may bring their action in the name of their treasurer." Tibbetts v. Blood, 21 Barb. 650. Fire companies are not such associations as would be embraced by the provisions of the statutes, either of 1849 or 1851; they are not owners of the engines, and are not interested in the property under their charge, except as agents of the city authorities; and the complaint in an action brought by one fire company to recover possession of an engine from another fire company, was dismissed on the ground that the action could not be maintained in the name of the foreman, and a motion for new trial was denied. Masterson v. Botts, 4 Abb. 130. An association named the "Frankfort Cheese Factory," formed for the purpose of manufacturing milk into cheese, not only for its members, but for the surrounding country, and under the conditions that net proceeds should be distributed among the members of the association in proportion to the quantity of milk furnished by each, is an association under these statutes, and may sue in the name of the treasurer of such association. Bridenbeker v. Hoard, 32 How. 289 And it seems to be settled that when jointstock companies or associations are not organized under the authority of these statutes, by whatever name they may be called, they are really but co-partnerships, and come under the rule of practice in regard to suing and being sued, which is applicable to co-partners; in the act shall be construed to confer upon the companies or associations to which it has reference any of the rights and privileges of corporations. New York Marbled Iron Works v. Smith, 4 Duer, 362. See Austin v. Searing, 16 N. Y. (2 Smith), 113. The president of the American and Foreign Christian Union, an association for the diffusion of "religious liberty and pure christianity at home and abroad," would be allowed to prosecute a claim on a legacy bequeathed to the association; and the appropriate person is either the treasurer or president, according to the nature of the case. De Witt v. Chandler, 11 Abb. 459. Joint stock associations, organized under these statutes and clothed with power to sue and be sued in the name of their president or treasurer, are to be considered as corporations when in the relation of parties litigant, and subject to the rules of practice applicable to corporations; and an application to remove a contested case into the United States court cannot be defeated on the ground that one of the stockholders of the association is a citizen of the same State with the defendant. Fargo v. McVicker, 38 How. 1; S. C. 55 Barb. 437. The provisions of the statute of 1853 are absolute, in requiring suits brought against partnerships or associations composed of seven or more members, to be prosecuted against the president or treasurer, and the remedy against the joint property is first to be exhausted, then action may be brought against the individual associates. Robbins v. Wells, 18 Abb. 191; S. C. 26 How. 15; 1 Rob. 666. In regard to the dissolution of manufacturing companies in the county of Herkimer, see Laws 1852, chap. 361. This act has been held "to transfer to trustees the right of action in behalf of all creditors, and to direct such trustees to resort to the assets of the corporation as the primary fund instead of the personal responsibility of the stockholders." Story v. Furman, 25 N. Y. (11 Smith), 214. h. Education.-The title to all school property, real and personal, purchased with any moneys derived from the distribution or apportionment of the school moneys or raised by taxation in the city of New York, shall be vested in the mayor, aldermen and commonalty of said city, but shall be under the care and control of the board of education, and all suits in relation to the same shall be brought in the name of said board, etc. Laws of 1853, |