Hallett v. Harrower , 33 Barb. 537 ( 1860 )

By the Gonrt,

E. Darwin Smith, J.

The summons in this action, and the complaint, are entitled “ Samuel Hallett, president of the Bank of Hornellsville, v. G-abriel T. narrower,” and in the body of the summons the defendant is summoned to answer the complaint of “ Samuel Hallett, president of the Bank of Hornellsville, plaintiff.” The complaint commences as follows: “ Samuel Hallett, plaintiff in this action, complains against the defendant, and says that he is president of the Bank of Hornellsville, a moneyed corporation established and doing business at Hornellsville aforesaid, under and pursuant to an act entitled An act to authorize the business of banking,’ passed April 18, 1838, and the several acts amendatory thereof.” The complaint then proceeds to state that the defendant, as sheriff, took and carried away from the store and possession of William W. Fulton and Charles H. Payne certain goods and chattels, the property of said Fulton and Payne, and thereafter particularly described, and that afterwards, and before the commencement of this action, the said Payne and Fulton, for a good and valuable consideration to them paid by the said Bank of Hornellsville duly sold and assigned, transferred and set. oyer unto the said Bank of Honellsville the said goods and chattels and all the right, title, interest, claim and demand of, in and to the same, and all claim or demand growing out of the wrongful taking of the same. The action is brought to enforce the right thus acquired, and to recover the value of the goods and chattels so taken by the defendant.

The description of the plaintiff contained in the summons and in the title to the complaint, if the cause of action described had been one of mere private right, would be regarded as a mere descriptio persanes,. (Delafield v. Kinney, president of the Erie Bank, 24 Wend. 345. Hunt v. Van Alstyne, 25 Wend. 605. The Ogdensburgh Bank v. Van Rensselear, president of St. Lawrence Bank, 6 Hill, 240. Merritt v. Seaman, 2 Seld. 172.) But the complaint expressly asserts and avers that the plaintiff is president of the Bank of Hornellsville, a moneyed corporation established and doing business at Hornellsville, and then sets out a cause of action arising or accruing to such bank under the general banking law of 1858. The action must therefore be deemed an action commenced by the plaintiff as a corporation or association under the general banking act, according to the form prescribed by the 21st section of that act. Such is the clear and necessary interpretation and construction of the complaint. The second and third answers of the defendants expressly deny that the plaintiff is such .corporation, or that there is any such corporation as the Bank of Hornellsville, and they allege that the said Samuel Hallett is not president of any such corporation, and has no authority, power or capacity to sue as such. The issues thus tendered by the defendant are material, and the plaintiff obviously cannot recover unless he can establish the allegations of his complaint thus denied. (2 R. S. 458, § 3. Bank of Genesee v. The Patchin Bank, 3 Kernan, 309.) The certificate which the plaintiff offered in evidence to prove such -issue on his part was, I think, improperly received for that purpose; and this presents the first exception for our consideration. This certificate upon its face shows that it was made and filed by the said Samuel Hallett as a private banker, and that he proposes to “ commence the business of banking as an individual banker at Hornellsville in the county of Steuben, under the name and designation of the Bank of Hornellsville.” The issue presented by the pleadings is whether the plaintiff is a corporation; The plaintiff must establish his corporate character, to maintain the action. This certificate does not tend to prove such character.- It tended to prove that the said Samuel Hallett was an individual banker, and had established a private bank in the style of The Bank of Hornellsville, and nothing more. A private banker is not a corporation. This is now distinctly decided in the cases of The Bank of Havana v. Magee, (20 N. Y. Rep. 356,) and Codd v. Rathbone, (19 id. 39.) The paroi evidence of Samuel Hallett, showing that he established the Bank of Hornellsville under such certificate, was also improperly received. The plaintiff could not make out his corporate character in that way. He could not enlarge the force of the certificate, nor could a corporation be organized by paroi. It must have a charter from the legislature, or, what is equivalent, it must be organized under the general act. .Acts in pais tending to prove an organization of a banking association might be proved, but this paroi proof was not directed to that end. Without discussing other exceptions, in regard to the admissibility of evidence, and other questions, I think the motion for a nonsuit should have been granted, for the reason that there was an entire failure of proof to establish the corporate character of the plaintiff. That was really all the issue seriously litigated, and the plaintiff gave no proof which would warrant the jury in finding a verdict for him upon that issue. It follows, therefore, as this objection was in no way obviated in the course of the trial, that the verdict must be. set aside and a new trial granted.

[Monroe General Term, December 3, 1860.

Smith, Johnson and Knox, Justices.]

Hew trial granted; costs to abide the event.