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Brown v. Champlin, 66 N. Y., 214.

thereon from the first day of May, 1873; that no action or pro- 4 ceeding has ever been brought, instituted or taken to recover the moneys so, as aforesaid, due and unpaid on the said bond or any part thereof.

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Second. For a second and further cause of action herein against the defendants, the plaintiff states the following facts. That heretofore and on or about the 17th day of June, 1869, at the city of Buffalo, Erie county, and state of New York, the defendants, Seth Clark, Edwin A. Holbrook, Salmon Shaw, Oliver H. P. Champlin and Henry S. Cunningham, covenanted with Frederick W. Breed and Charles E. Young, under their hands and seals, to pay to the said Frederick W. Breed and Charles E. Young, or their assigns, the sum of $4,000 on or before the 16th day of August next thereafter with interest thereon from the date thereof. That thereafter, and on or about the 17th day of June, 1869, the said Frederick W. Breed and Charles E. Young, the owners and holders of said bond, did for a valuable consideration to them in hand, paid by this plaintiff, sell, assign and transfer the said bond and the money and moneys due and to grow due thereon to this plaintiff; that there is now due 6 and unpaid on said bond the sum of $975 and interest thereon from the first day of May, 1873.

That the plaintiff is now the sole, true and lawful owner and holder of the said bond; that there is now due and owing this plaintiff by these defendants the sum of $975 and interest thereon from the first day of May, 1873; that payment has been demanded; that the defendants neglect to pay the same; wherefore and by reason of the facts above stated the plaintiff demands a judgment herein against the defendants for the sum of $975 7 and interest thereon from the first day of May, 1873, and the cost of this action.

At the trial in the Supreme Court it appeared that a joint stock company, in which Breed and Young were stockholders, desired a loan, and obtained it by inducing the obligors to execute their bond to Breed and Young, and that defendants, after signing the bond and before it could be assigned to plaintiff, made it a condition that, before it should be delivered, Breed and Young should execute an indorsement declaring themselves to be

Brown v. Champlin, 66 N. Y., 214.

8 jointly liable in all respects with the original makers, which they did by an indorsement not under seal. Judgment for plaintiff.

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The General Term, without opinion, affirmed the judgment.

The Court of Appeals affirmed the judgment.

CHURCH, Ch. J.

The learned counsel for the defendants asks for a reversal of the judgment in this action, upon three grounds: 1. That the recovery was for a different cause of action from that set forth in the complaint. 2. For usury. 3. For defect of parties defendant.

The first ground is clearly untenable. The complaint contains two counts. The first alleges the making and delivery by defendants of a bond in the penal sum of $10,000, conditioned

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pay Breed & Young $5,000, and an assignment for value by the latter to plaintiff. The second count alleges that the defendants covenanted under their hands and seals to pay Breed & Young $4,000, which covenant was assigned by the latter to plaintiff for value. The recovery was substantially for the cause of action set forth, although some of the circumstances as proved 10 and found attending it were not averred.

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It is found that the defendants and Breed and Young were stockholders in a North Carolina gold mining company, and agreed with the plaintiff for a loan to the company of $4,000, to be secured by a mortgage of the company upon its real estate in North Carolina, and the bond of the defendants. The omission to state the relation of the parties to the company and the application for the loan, or that Breed and Young were nominal obligees only, or all the terms of the assignment, or that the loan was made to the company, did not make a failure of proof of the cause of action set up in the complaint, nor a substantial variance, and certainly not one which could have misled the defendants. It is unnecessary to set forth the evidence or the circumstances attending the transaction. It is sufficient to charge the legal effect of a transaction, contract or instrument in writing.

[The part of the opinion not relating to the pleading is here omitted.]

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Bostwick v. Van Voorhis, 91 N. Y., 353.

BOSTWICK v. VAN VOORHIS..

New York Court of Appeals, 1883.

[Reported in 91 N. Y., 353.]

1. The provision of 2 R. S., 378 (5th ed., vol. 3, p. 661; 6th ed., vol. 3, p. 641), § 5, formerly in force-requiring specific breaches to be assigned in actions on bonds conditioned otherwise than for payment of money —was sufficiently complied with by a general allegation of acts which are contrary to the condition, though without specifying times, places, amounts, etc.

2. If not sufficient, the remedy is by motion to make more definite and certain, or for particulars.

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The material allegations of the complaint were [after alleging the incorporation of the bank of which plaintiff was receiver]: That after the said organization one Alexander Bartow made application for the appointment of cashier, and therewith presented his bond, duly executed by himself and specified persons, as follows: [the bond, set forth in the complaint in full, was in the usual form of a joint and several bond, in the penal sum of $30,000, and conditioned as follows]: "The condition of this obligation is such that, whereas the 2 above bounden, Alexander Bartow, has been duly appointed cashier of the said National Bank of Fishkill, now if the said Alexander Bartow shall well, honestly and faithfully discharge the duties of such cashier, rendering at all times his undivided care and services to said bank, and shall obey the orders and directions of the president and directors of said bank lawfully given, and shall at all times account for and pay over all moneys which have come, now are, or hereafter may come into his hands, belonging to said bank, and shall keep true and accurate 3 books of all the affairs of the said bank intrusted to him, then the above obligation to be void, or else to remain in full force and virtue. [Rest omitted here.]

That said bond was accepted by said bank, and said Bartow entered upon his duties as cashier.

III. That said Alexander Bartow, during the time he continued to act as such cashier, did not honestly and faithfully discharge the duties of such cashier, and did not render at all

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4 times his individual care and services to said bank, and did not obey the orders and directions of the president and directors of said bank lawfully given, and did not at all times account for and pay over all moneys which came into his hands, belonging to said bank, and did not keep true and accurate books of all the affairs of the said bank entrusted to him. But, on the contrary thereof, the said Alexander Bartow paid out the moneys of said bank fraudulently to various persons, without any sufficient vouchers or security therefor, and fraudulently permitted various persons to overdraw their accounts without any security, and fraudulently altered and falsified the accounts and books of said bank so as to conceal said fraudulent doings, and has refused to pay over to the president and directors of said bank large sums of money, to wit., $100,000 and over, refusing to account for the same, to the damage of the said National Bank of Fishkill of $100,000.

[The remaining allegations are not material to the present inquiry].

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The former statute, 2 R. S., 378 (5th ed., vol. 3, p. 661; 6th ed., 6 vol. 3, p. 641) § 5, requiring plaintiff to "assign specific breaches is as follows:

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"When an action shall be prosecuted in any court of law upon any bond for the breach of any condition other than the payment of money, or shall be prosecuted for any penal sum for the non-performance of any covenant or written agreement, the plaintiff in his declaration shall assign the specific breaches for which the action is brought."

The present statute, Code Civ. Pro., § 1915, is as follows:

§ 1915. A bond in a penal sum, executed within or without the state, and containing a condition to the effect that it is to be void upon performance of any act, has the same effect for the purpose of maintaining an action or special proceeding, or two or more successive actions or special proceedings thereupon, as if it contained a covenant to pay the sum or to perform the act specified in the condition thereof. But the damages to be recovered for a breach, or successive breaches, of the condition, cannot, in the aggregate, exceed the penal sum, except where the condition is for the payment of money; in which case they

Bostwick v. Van Voorhis, 91 N. Y., 353.

cannot exceed the penal sum, with interest thereupon from the 8 time when the defendant made default in the performance of the condition.

The General Term of the Supreme Court refused to consider whether the form in which the breaches were assigned in the complaint was imperfect, holding that it was a mere question of pleading, which may be waived by a failure to object in time.

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The Court of Appeals affirmed the judgment. EARL, J. [after reciting the condition of the bond]: Upon the argument before us several objections to the recovery were urged upon our attention, which we will consider separately. First. It is said that the complaint should have been dismissed because it did not assign specific breaches of the bond. This objection is based upon section 5, article 2, title 6, chapter 6, part 3, of the Revised Statutes, which provides that "when an action shall be prosecuted in any court of law upon any bond for the breach of any condition other than for the payment of money, or shall be prosecuted for any penal sum for the nonperformance of any covenant or written agreement, the plaintiff 10 in his declaration shall assign the specific breaches for which the action is brought." The counsel for both parties assumed that this provision of the statutes was in force when this action was commenced in 1877; and, without determining whether it was or not, we think it was sufficiently complied with. It was alleged in the complaint that Bartow did not honestly and faithfully discharge his duties as cashier; that he did not render at all times his individual care and services to the bank; that he did not obey the directions of the president and directors of the bank, lawfully given; that he did not at all times account for and pay over all moneys which came into his hands belonging to the bank, and did not keep true and accurate books of all the affairs of the bank intrusted to him; but that, on the contrary thereof, he paid out the moneys of the bank fraudulently to various persons, without any sufficient vouchers or security therefor, and fraudulently permitted various persons to overdraw their accounts without, any security, and fraudulently altered and falsified the accounts and books of the bank so as to

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