New-York African Society for Mutual Relief v. Varick

13 Johns. 38

• Court: New York Supreme Court
• Decided: January 15, 1816
• Status: Published

Opinion

Per Curiam.

This case comes before the court on a ds.piurrer to the second count in the de'claration. The action is debt, upon a .bond given by the defendants to the plaintiffs, for the faithful discharge of the duties of treasurer of the society, by Daniel Barry. The declaration sets out the condition of the bond, with .an averment of a breach. The second count states, that the defendants acknowledged themselves to be held and firmly bound unto the plaintiff, by the description of the standing committee of the New York African Society for Mutual Relief, Sec., to be paid to the plaintiff, &g. The ground upon which this demurrer was placed by the defendants’ counsel, was, that the suit should haye been in the name of the trustees, or Committee, and not in the name of the corporation. From the demurrer books, it does not appear that any trustees are named. There is no oyer of the bond; and the most that can be col},ected from thp pleadings, is a misnomer of the corporation. By the declaration, however, it appears that the solvendum is to the plaintiff by the true corporate ríame, and this is sufficient. (3 Wils. 184.) Where a deed is made to, a corporation, by a name .varying from the true name, ;the plaintiffs may sue in their true name, and aver ip the declaration, that the defendant made the deed to them, by the name mentioned in the deed. Thp allegation in the declaration, that the defendants acknowledged themselves to be bound unto the plaintiffs, by the description, &c., j,s equiyalent to such an averment. (10 Co. 125. b. 1 Kyd on Corp. 287.) The demurrer is, therefore, not well taken, and the plaintiff is entitled: to judgment..

Judgment for plaintiffs.