The Chemung Canal Bank agt. William R. Judson.

SUPREME COURT.

THE PRESIDENT, &c., OF THE CHEMUNG CANAL BANK agt. WILLIAM R. Judson.

On an appeal from a judgment at the circuit or special term, the undertaking, in order to stay proceedings, must provide for the payment of all the costs, as well as the damages which may be awarded on the appeal, not exceeding $250, (§§ 334, 335.)

Where the undertaking omits to provide for the payment of the costs on the appeal, but in all other respects is regular, the party upon whom it is served is not bound to return it. It is good as far as it goes, but does not stay the proceedings, or the issuing execution upon the judgment.

It seems, that where a party returns a paper as irregular, he must state his objections to it explicitly. A mere statement that the service is irregular, and not in compliance with certain sections of the Code, is not enough.

Ontario Special Term, Aug., 1854.-Motion to set aside exe

cution.

Judgment was entered and perfected in the Chemung county clerk's office in favor of the defendant, against the plaintiffs for $456.68 on the 9th of May, 1854. On the 15th of the same. month written notice of the judgment was served on the plaintiff's attorney. On the 24th of the same month the plaintiff's attorney served upon the defendant's attorney notice of appeal from the judgment to the general term. On the 25th a copy order for time to make a case or bill of exceptions was served on the defendant's attorney. On the 26th notice of the appeal was served on the clerk of Chemung county. On the 29th of June following an undertaking was duly executed and acknowledged, and the sureties justified in the sum of $1500, and the same filed in the clerk's office of Chemung county. The undertaking was to the effect that if the judgment appealed from or any part thereof should be affirmed, the appellants would pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment should be affirmed, if it should be affirmed only in part, and all damages which should be awarded against the appellants on the appeal. On Saturday the 1st of July following a copy of the undertak

The Chemung Canal Bank agt. William R. Judson.

ing was served on the defendant's attorney. On the following Monday, the 3d of July, the defendant's attorney returned the copy undertaking to the plaintiff's attorney with a notice that it was returned for the reason "that the service of the same was irregular and not in compliance with the sections of the Code of Procedure regulating appeals ;" and on the same day last mentioned issued an execution on the judgment to the sheriff of Chemung county. The plaintiffs now move to set the execution aside as irregular.

DAVID WRIGHT, for plaintiffs.

CLARENCE A. SEWARD, for defendant.

WELLES, Justice. An appeal from a judgment at the circuit or special term does not stay the proceedings, unless security is given, as upon an appeal to the court of appeals, or unless the court or a judge thereof so order, &c. (Code, § 348.) There was no order of the court or a judge directing the appeal to operate as a stay of proceedings. The question is, whether the security given should have that effect.

To render an appeal to the court of appeals effectual for any purpose, a written undertaking must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all the costs and damages which may be awarded against him on the appeal, not exceeding $250, or that sum must be deposited, &c., to abide the event of the appeal. (Code, § 334.) By the following section, (335,) if the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant by at least two sureties, to the effect as contained in the undertaking given in this case. By § 340 these undertakings may be in one instrument or several at the option of the appellant. The plaintiffs have not, therefore, done enough to have their appeal operate as a stay of proceedings. Security has not been given "as upon an appeal to the court of appeals." The security given does not provide, as required by § 334, that the appellant will pay all costs and damages which may be awarded against him.

The East River Bank agt. Dewitt C. Judah and others.

on the appeal. The costs of the appeal are not provided for in the undertaking. This was essential, and the omission is fatal.

The defendant was not bound to return the copy of the undertaking. It was good as far as it went. If it was a case where the defendant was bound to return the paper with a statement of the reasons, &c., I should have no hesitation in saying the reasons stated in this case were entirely too vague. They gave no information to the plaintiffs calculated to apprise them of any specific objection. But the plaintiffs were bound, at their peril, to give the security required by law to prevent an execution, and not having done so, the defendant was regular in issuing it.

The order for time to make a case or bill of exceptions, did not stay the defendant from issuing execution. The appeal was regular and effectual without the case or bill of exceptions, which, if settled after the judgment roll is filed, the court may order annexed. (Voorhies' Code, 2d ed. 304, note and authorities there cited.)

The motion is denied, with $10 costs.

NEW-YORK COMMON PLEAS.

THE EAST RIVER BANK agt. Dewitt C. Judah and others. An association formed under the General Banking Law may maintain an action either in the name of its president, or the name used in transacting its business.

At Special Term, October, 1854.-The plaintiffs being a banking institution, organized under the general act, brought an action in the name designated in the articles of association.

The defendants demurred to the complaint, and among other causes of demurrer alleged that the action should have been in the name of the president, as provided by statute, and that the complaint did not show a cause of action.

JOHN NEWHOUSE, for plaintiffs.

E. R. L'AMOUREUX, for defendants.

The East River Bank agt. Dewitt C. Judah and others

INGRAHAM, First Judge. The plaintiffs, being an association under the general banking act, bring their action in the name of the East River Bank, and not of their president.

To this complaint the defendant, Judah, demurs.

The grounds of demurrer are all embraced in one, viz., that the action should have been in the name of the president instead of the name used.

The Act of 1838, p. 250, provides that all suits and proceedings may be brought in the name of the president thereof, and no other provision has been subsequently made altering this mode of bringing actions.

It is argued, on behalf of the plaintiffs, that the decisions of the late court of errors that these associations are, to a certain extent, corporations, authorize the use of the corporate name. and that there is no foundation for this demurrer.

If such a decision had been made, that the free banks were corporations in the full meaning of the term, the use of the corporate name would be proper, but I do not so understand the decisions referred to.

In the case of Warner agt. Beers, (23 Wend. 103,) it was decided that these associations were not corporations within the meaning and spirit of the constitution.

In The People agt. The Assessors of Watertown, (1 Hill, 616,) the supreme court held, that for the purposes of taxation they were to be considered corporations. (See also 3 Hill, 389.)

In Tracy agt. The North American Trust and Banking Co., (12 Leg. Ob. 302,) the question has been fully examined by the general term of the supreme court in this district, and the court held, that although possessed of certain corporate attributes, and subject to certain corporate liabilities, they are not bodies corporate within the meaning of the constitution.

It cannot, therefore, be said that these decisions have established that such associations are corporations as usually understood by that term, and, therefore, possess all corporate powers belonging to them when properly created.

But although not corporations in the full meaning of that term, I think the decisions justify the conclusion that they

The East River Bank agt. Dewitt C. Judah and others.

possess enough of a corporate character to warrant them in using the name in conducting legal proceedings, which by law they are authorized to assume in making contracts.

There are various bodies which possess a quasi corporate existence, and which can sue in their general name without designating the individual members, and that rule, I think, may with propriety be applied to these associations.

By the 16th section of the act of 1838 they are authorized to adopt a name to be used by the association in its dealings. By that name it has been held they must make their contracts, and that in an action brought against the president of the association, the averment that the defendant made the contract was held to be bad, "the pleader," says Judge BRONSON, should have alleged that (the bank) by its name, made the note, &c. (Delafield agt. Kinney, 24 Wend. 349.)

If it may contract by that name, and in averring such contract the name of the bank must be used in a pleading, as showing the making of the contract, I see no reason why the same name may not be used in legal proceedings.

In the case last referred to, Judge BRONSON says: "Corporations formed under the general banking law may sue and be sued by their original corporate names." "True, the statute provides that suits by the association may be brought in the name of the president thereof. But there are no negative words taking away the right to sue and be sued."

"The general banking law has only superadded another form in which injuries may be redressed."

The intent of the provision allowing suits to be in the name of the president was, undoubtedly, to guard against any difficulty which might arise from the construction that such associations did possess any corporate powers, if some other way than the corporate name was not provided for enforcing their rights; but since the adjudications referred to, I see no necessity of confining these associations to the use of the name of their presidents in actions brought by them. On the contrary, either mode is consistent with their powers, and may be adopted in actions either for or against them.