FOURTH DEPARTMENT, FEBRUARY TERM, 1890.

made by the defendant on the minutes of the trial judge to set aside the verdict, and for a new trial upon the exceptions, and because the verdict was contrary to the evidence and contrary to law. This motion was also denied.

The defendant appealed from the judgment entered on such verdict, and also from the order denying the defendant's motion for a new trial.

David Murray, for the appellant.

Mead, Stranahan & Spencer, for the respondent.

MARTIN, J.:

The only question we deem it necessary to consider is, whether the recovery in this action can be upheld when there was neither allegation nor proof that the plaintiff sustained any damage because of the defendant's failure to perform its contract. The defendant's contract was that it would pay the amount realized from an assessment of its members, not exceeding $1,000. Thus the measure of the defendant's liability was the sum which would have been realized from such an assessment, if made, unless it exceeded such limitation. With no allegation or proof of the amount which would have been realized upon such an assessment, or that any amount would have been realized, it is difficult to see how the verdict in this case can be sustained. While it has been held in a number of cases that an action at law can be maintained upon such a contract, still the same cases are to the effect that in such an action, before the plaintiff can recover, he must prove facts sufficient to enable the jury to compute the amount due thereon. (O'Brien v. Home Ben. Soc. of N. Y., 21 N. Y. St. Rep., 640; affirmed, 27 id., 326; S. C., 11 id., 810; Freeman v. Nat. Ben. Soc., 42 Hun, 253; Fulmer v. Un. Mut. Assn., 12 N. Y. St. Rep., 347; Hankinson v. Page, 12 Civ. Pro. Rep., 279; Peck v. Equitable Acc. Assn. of Binghamton, N. Y., 52 Hun, 255; Fitzgerald v. Equitable R. F. L. Assn., 24 N. Y. St. Rep., 494; Darrow v. The Family Fund Soc., 27 id., 476.) As there was no such proof in this case, we think the verdict was not sustained by the evidence, and that the court erred in denying the defendant's motion for a new trial,

FOURTH DEPARTMENT, FEBRUARY TERM, 1890.

Judgment and order reversed and a new trial granted, with costs to abide the event.

MERWIN, J., concurred.

HARDIN, P. J.:

It is suggested that the ground upon which the opinion of MARTIN, J., proceeds for a reversal was not sufficiently taken at the trial. There was no allegation in the complaint of the amount which would have been realized upon an assessment, or that an assessment would have yielded any amount. There was no proof given upon that subject by the plaintiff. In the fifth answer of the defendant it was stated: "That the plaintiff has no right to have or maintain this action." At the close of the evidence, in stating the grounds for a motion for a nonsuit, the defendant took the position, viz.: "That in this case, from the proofs presented, there can be no recovery"; also, the further position that "the plaintiff cannot maintain this form of action on the policy." In response to the last ground the court inquired, "Is there any such question raised by your pleadings?" and the counsel for the defendant replied affirmatively and referred to the fifth answer. The court made an observation to the effect that he was of the opinion that the answer was inadequate, and thereupon ruled and decided, viz.: "I will not nonsuit on that ground?" Thereafter counsel for the defendant stated, viz.: "I wish to make the general motion on the ground that the plaintiff has not made out a cause of action." The motion was denied and the defendant excepted. In delivering the charge to the jury the court observed: "The amount of your verdict, if for the plaintiff, will be $1,044.66." Doubtless an exception would have been taken to that branch of the charge if the court had not, when the motion for a nonsuit was under consideration, made the rulings which have been quoted. Upon the record, as made up, it seems the attention of the court was called to the question, and apparently was understood by the court and its ruling made in the face of the objection taken in the double language used by the appellant, first: "That the plaintiff cannot maintain this form of action on the policy;" and, secondly: "That the plaintiff has not made out a cause of action."

FOURTH DEPARTMENT, FEBRUARY TERM, 1890.

In Freeman v. The National Benefit Society (42 Hun, 253), proof was given that an assessment upon the members liable to contribute to the death fund "would have produced a fund sufficient to pay the plaintiff's claim." No such proof was given in this case. The stipulation in the policy in this case was to pay to the plaintiff "the principal sum, not exceeding $1,000, realized upon an assessment, in accordance with the provisions of section 1 of article 6 of its by-laws as printed on the back of this certificate."

In section 1 of article 6 the provision was that the association shall pay "the amount collected from all of the members of the association at the time of accident upon an assessment of one dollar upon each half-rate member, and in addition, in case of full rate certificate two dollars, and of a half-rate certificate one dollar upon each full-rate member, however not to exceed the amount named in the deceased member's certificate, which payment shall also be subject to diminution to the extent of the weekly indemnities paid to such member within six months preceding such death."

In O'Brien v. Home Benefit Society of New York (11 N. Y. S. R., 814) in the opinion, LANDON, J., says, viz.: "In the present case the agreement is that all of the amount realized from one assessment, not exceeding $2,000,' is payable. To recover in an action at law it must be necessary to show what is the amount realized from one assessment. It may be more or less than $2,000. In the absence of evidence there can be no presumption that it will equal $2,000, for that sum is specified as the greatest sum payable, thus clearly implying that it may be less."

A recovery in Peck against this defendant was upheld (52 Hun, 256), but in that case it was found by the trial court "that if an assessment had been levied, as provided by such policy, it would have produced at least $5,000, and that the plaintiff was entitled to a judgment for $5,000, with interest thereon from August 1, 1887, together with the costs of this action." There was no proof given in the case now before us that an assessment would have yielded "$1,044.66" or any other sum. If it could be successfully maintained, as has been suggested, that the plaintiff was entitled to recover at least nominal damages, that would not furnish an answer to the rulings made nor justify a refusal of the trial judge to refuse the motion for a new

FOURTH DEPARTMENT, FEBRUARY TERM, 1890.

trial made upon the minutes on the ground that the verdict was against evidence as the verdict was for $1,044.66.

The foregoing views lead me to concur in the opinion of MARTIN, J., favoring a reversal.

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

JOHN SEACORD, RESPONDENT, v. CHARLES E. PENDLETON AND OTHERS, APPELLANTS, IMPLEADED, ETC.

ANNIE O'HEARN, RESPONDENT, v. ELIZABETH PEARSALL AND OTHERS, APPELLANTS.

MERCHANTS' NATIONAL BANK OF BINGHAMTON, NEW, YORK, RESPONDENT, v. SELIM KIRBY AND OTHERS, APPELLANTS.

Bank, never legally incorporated—liability, to depositors, of those holding certificates of stock issued by it.

A complaint alleged that a deposit had been made by the plaintiff in the Home Savings Bank, which was organized by the election of a president, cashier and board of directors; that the defendants were stockholders in said bank, which was, however, in fact, never legally incorporated under the laws of any State or of the United States, although certificates of stock were issued to and held by the defendants and dividends had been declared and received thereon before and at the time of the said deposit, made by the plaintiff, of his money in said bank; that, by reason of the foregoing facts, the defendants were, at the time in the complaint mentioned, copartners, doing and carrying on the business of banking under the name and style of the Home Savings Bank. Held, that the defendants, by reason of the facts stated in the complaint, did not become jointly or individually liable to the plaintiff for the money deposited in the bank by him.

That the mere fact that the bank was not legally incorporated did not render the alleged stockholders liable as partners to persons depositing money therein, in the absence of proof that the stockholders had performed any act in relation to said bank, or that they had been in any way connected with, or had any knowledge in regard to, the management of its business, or in any way authorized, or consented to, any of the acts performed by others, except that they held what purported to be certificates of stock in the bank and received dividends thereon.

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That, in the absence of evidence of an agreement upon the part of the defendants to become partners, or of some act which indicated that they were acting as such, or that they had knowledge of the acts of others in relation thereto, the defendants did not become liable as partners, although they shared in the profits of the bank by the receipt of dividends paid therefrom upon their stock. Semble, that it would have been otherwise if the complaint had alleged that the defendants had acted, or were instrumental, in organizing such bank by the election of a president, cashier or board of directors, or had taken any part in such proceedings or in any business transacted by the bank, either as principals, partners, agents, directors or otherwise.

APPEALS by the respective defendants from interlocutory judgments, entered, in the first and second above-entitled actions, in the office of the clerk of the county of Tioga, and in the third aboveentitled action, in the county of Broome, overruling the demurrers of certain of the defendants, with leave to the demurring defendants within twenty days from the service of a copy of the interlocutory judgment, to pay the costs and answer the complaint, and directing that otherwise the respective plaintiffs have judgment absolute.

H. Austin Clark and Frederick Collin, for the appellants.

Jacob Schwartz and Edmund O'Connor, for the respondents. MARTIN, J.:

This was an appeal from an interlocutory judgment overruling a demurrer to the plaintiff's complaint. The ground of the demurrer was that the complaint did not state facts sufficient to constitute a cause of action.

The complaints in these actions in substance alleged, that on September 15, 1873, there was a bank instituted at South Waverly, Penn., which was conducted under the name of the "Home Savings Bank;" that it was organized by the election of a president, cashier and board of directors; that the president was dead; that there was no treasurer; that the bank continued to do business during the times hereinafter stated; that in the course of its business the bank, through its authorized agents, received money on deposit, issued certificates for moneys so deposited, and held money subject to the check of the depositors; that said bank was never legally incorporated under the laws of any State, or of the United States; that certificates of stock were issued to and held by each of