Andrews v. The Astor Bank.

I apprehend, that any ordinary man of common understanding, holding, or being offered such a bill, would read it as being a bill drawn on the Astor Bank, and accepted by the bank, by its president.

The complaint states everything relating to it, which the Code requires, § 162. The Code having enacted such a form of complaint to be good, I have neither the power nor the inclination to adjudge it to be bad.

The system of pleadings and practice superseded by the Code, did not require any more to be stated than this complaint contains.

It was enough to declare on the common counts, annex a copy of the bill, and a notice that the bill and acceptance thereof was the plaintiff's only cause of action.

The defendant was not at liberty to interpose a plea, unless he served with it an affidavit, that he had a good defence on the merits, to the bill or some part thereof.

The defendant is subjected to no inconvenience. If there is any defence, it is to be set up by answer. There can be no doubt for what the action is brought, nor what proof is required to sustain it, if the acceptance of the bill by the defendant be denied.

The Code having provided this form of complaint, the plaintiff must have judgment on the demurrer.

It must not be supposed that this decision is at all at variance with the prior decisions of this court in Lord v. Cheesebrough, 4 Sand. 696, and Adler v. Bloomingdale, 1 Duer, 601. In each of those cases, it did not appear, on the face of the complaint, that the defendant was certainly liable, but to show his liability, extrinsic facts were necessary to be averred. In each case,

the note declared on was not an instrument for the payment of money only, within the meaning of the Code; but that a bill of exchange, when the action is against the acceptor, is such an instrument, cannot be denied.

The defendant, on filing an affidavit of merits, may withdraw the demurrer and put in an answer in ten days, on payment of the costs of the demurrer, and stipulating to take notice of trial for the June term.

Kattenstroth v. The Astor Bank.

KATTENSTROTH V. THE ASTOR BANK.

A motion for the appointment of a receiver, when the order to show cause against the appointment is served before the commencement of the suit, will be denied as irregular.

It is very doubtful whether the Superior Court has jurisdiction of a proceeding under the R. S. for the dissolution of a moneyed corporation.

It is clear that the court has no authority to exercise the visitorial powers that were formerly vested in the Court of Chancery.

(Special Term. BOSWORTH, J.)

May, 1853.

BOSWORTH, J.-This action is brought to obtain a decree dissolving the corporation. A receiver is prayed for to wind up the affairs, and take the control of its assets; and also an injunction to restrain the defendant, and its officers, from interfering with the property. A motion is now made for the appointment of a receiver.

The motion is irregular. When the order to show cause was served, no action had been commenced. The summons was not served until the return day of the order. This is clearly irregular, and the objection having been taken preliminarily, it is an answer to this motion.

Whether this court has jurisdiction of such an action, it is unnecessary to decide on this motion.

Prior to the new constitution, the jurisdiction was vested in the Court of Chancery. (2 R. S. 462.)

The act of 1847 (Vol. i., p. 323, Laws of 1847) § 16, devolved it upon the Supreme Court.

If this court has jurisdiction, it acquires it under § 33 of the Code, sub 3.

The corporation is created under the laws of this state; is located, and transacts its business, in the city of New York.

The proceeding is, perhaps, one coming within the definition of an action. (Code, § 2.)

Whether § 471 has the effect to continue the jurisdiction exclusively in the Supreme Court, and only conforms the proceed

Klein v. Hentz.

ings to be had there to those prescribed by the Code, it is unnecessary to determine on this motion.

If this court has jurisdiction, then the mayor's courts of cities, and the recorder's courts of cities, also have it with respect to moneyed corporations, created under the laws of this state, and transacting their business in the cities where such courts are organized.

I think it clear that the Code has not given this court authority to exercise any of the visitatorial powers over moneyed corporations, which were vested in the Court of Chancery by art. 2, of title 4, of chap. 8 of 2 R. S., p. 462.

If it has not, the doubt is not weakened, whether it has given to this court jurisdiction of any of the proceedings regulated by that article.

Perhaps sub. 3 of § 33 of the Code only relates to actions to recover a debt or damages, or such equitable relief as one natural person may claim of another.

No case is made authorizing any court to proceed under § 38 of 2 R. S. 463. Whether a case is made under § 39, will be one of the questions to be determined, if the motion is renewed. The motion is denied, with $10 costs, but without prejudice to plaintiff's right to renew it, if so advised.

E. Sandford, for plaintiff.

H. E. Mather, for defendants.
Approved on consultation.

MARGARET KLEIN, by her next friend, John P. Treshman, v. JACOBUND HENTZ and MICHAEL HENTZ.

In an action to recover damages for slanderous words spoken of a married woman, if the words are actionable per se, the husband is a necessary party as plaintiff.

Where the words are actionable only by reason of special damage, the husband must sue alone.

(May Special Term, 1858

Klein v. Hentz.

BOSWORTH, J.-This case comes before the court on a demurrer to the complaint. The plaintiff is a married woman, and brings the action to recover damages for slanderous words spoken of her by the defendants, whereby, as it is alleged, special damage has resulted; such as that her husband has been alienated from her, the support theretofore given her by her said husband has been withdrawn, and whereby she has been often deprived of food, raiment, and the necessaries of life; and that parties have refused to employ her, and pay her for her services, which they otherwise would have done.

The demurrer assigns for cause, that the husband is not a party, and is a necessary party plaintiff.

Beach v. Ranney, 2 Hill, 309, expressly decides two points. First, That when the words are actionable per se, the husband must be joined with the wife as a party plaintiff.

Second, That where the words are not actionable per se, the husband must sue alone.

The husband is bound by law to provide support and maintenance for the wife. If she is deprived of the gratuitous aid of friends in consequence of the slander, the damage, in a legal point of view, results to the husband. In judgment of law, no damage results to her, unless she has been injured in her property or person. If the words are actionable per se, damage may result to her, but the action must be in the name of herself and husband. If actionable only by reason of special damage, the damage results to the husband and not to the wife.

The Code has not changed the rule in relation to parties, or the law arising on such a state of facts, as formed the grounds of adjudication in Beach v. Ranney, Code, 114.

The defendant is entitled to judgment. The plaintiff may amend the complaint within twenty days, both as to parties, and as to allegations of facts, on payment of the costs of the demurrer.

Approved on consultation.

Varian v. Stevens.

ISAAC R. VARIAN & others v. THOMAS G. STEVENS & others.

The superior court has jurisdiction of an action for the partition of real estate, situate within the city and county of New York, irrespective of the residence of the parties (Code, § 123, sub. 2, and § 33, sub. 1).

Jurisdiction over the person is as fully acquired by the voluntary appearance of the defendant, as by service of a summons (Code, § 139).

When, upon the petition of infants over the age of 14, a guardian ad litem has been appointed in a partition suit, the order is valid, although no summons had been previously served upon the infants.

The jurisdiction of the court is, therefore, complete, when an answer on behalf of the infants has been put in by the guardian so appointed.

The appointment of a guardian, ad litem, in a partition suit, is regulated by the R. S., and is made by the court (2 R. S., § 2, p. 317).

To such an appointment, the cases of The People v. Hoffman (7 Wend. 487) and Grant v. Van Schoonhoven (9 Paige, 225) have no application.

The personal service of a summons upon an infant of the age of 14, under § 134, sub. 4 of the Code, has no other use than to hasten the period, within which the plaintiff may apply for the appointment of a guardian, when the infant himself neglects to apply, since, until this appointment is made, there can be no further proceeding against the infant.

When it is not denied that the signatures of infants to their petitions for the appointment of a guardian ad litem are genuine, it is no objection to the validity of the judgment in the action in which they were defendants, that it does not appear upon the record, that proof was furnished to the court that the signatures were genuine. It will be presumed that proof was given.

A variance in the name of an infant as stated in the complaint, and in the petition for the appointment of a guardian, may be disregarded as immaterial, both under the Code and under the R. Statute of Amendments (Code, § 176; R. S., § 7, sub. 10, p. 425).

Order, compelling a purchaser to take a title, to which the only objections were those above stated and overruled, affirmed, with costs.

(Before OAKLEY, Ch. J., BOSWORTH and EMMET, J.J.)

General Term, June, 1853.

THIS was an appeal by W. H. Paine, from an order made at special term, directing him to complete a purchase made by him, of certain lots, sold under the judgment in this action, which was an action for the partition and sale of real estate, situate in the city of New York. The facts sufficiently appear in the opinion of the court.