
    SUPERIOR COURT.
    John Myers agt. John A. Machado.
    An averment in a complaint upon a protested bill of exchange, that the plaintiff is duly authorized to bring an action on behalf of the foreign banking company, (the owners of the bill,) as one of its registered officers, is a conclusion of law merely. He should set forth the existence and terms of the act under which the bank was organized, and an authority given to him as one of its registered officers to sue on its behalf. Without this, the complaint is insufficient.
    If it should appear that such an authority was given, the plaintiff could maintain the action in his own name, on behalf of the bank, not only on grounds of international comity, but as a trustee of an express trust, within a reasonable interpretation of the Code.
    
      Special Term,
    
    
      Feb., 1857.
    H. G. De Forest, for plaintiff.
    
    E. Benedict, for defendant.
    
   Duer, Justice.

The action was against the defendant as drawer of a protested bill of exchange, discounted by and belonging to the Royal Bank of Liverpool.

The complaint averred that the plaintiff was one of the public registered officers of the Royal Bank of Liverpool, which was a banking company duly constituted and existing under the laws of the kingdom of Great Britain, and, as such officer, was duly authorized and empowered to commence any and all proceedings, at law and in equity, on behalf of said bank; and that the suit was brought for the benefit and on behalf of the said bank.

The complaint, in other respects, was in the usual form, and contained all proper averments to charge the defendant as drawer of the bill of exchange in question.

The defendant demurred, and specified the following grounds of demurrer:—

First. That the complaint did not state facts sufficient to constitute a cause of action.

Second. That the action was not prosecuted in the name of the real party in interest.

Third. That the Royal Bank of Liverpool is not made a party to the action.

Fourth. That the complaint does not state whether the Royal Bank of Liverpool is a corporation.

Fifth. That the members of the banking company are not made parties to the action.

Sixth. That the plaintiff is not authorized, by the laws of this state, to bring the action.

Held, That the facts averred in the complaint constituted a valid cause of action, and that the demurrer on the first ground stated must be overruled.

Held, That the averment that the plaintiff was duly authorized to bring the action on behalf of the bank, was not an averment of facts, but of a conclusion of law, and that the complaint was defective in not setting forth the existence and terms of the act of parliament, if any, under which the bank was organized, and an authority given to the plaintiff, as one of its registered officers, to sue on its behalf.

Held, That if it should appear that such an authority was given, the plaintiff could maintain the action in his own name on behalf of the bank, not only on grounds of international comity, but as trustee of an express trust, within a reasonable interpretation of the Code.

Held, That the demurrer could not be sustained upon any other of the specified grounds.

Judgment for defendant,—dismissing complaint, unless plaintiff, within forty days, serve an amended complaint, setting forth facts showing his authority to bring the action.

No costs to either party, if complaint so amended.  