The real party in interest.

suit was brought. The courts, however, gave a liberal construction to the exception to the general rule contained in sections 111, 113 of the Code, and declared that any person who acts in trust for, or in behalf of another, is, in fact, a trustee of an express trust; and that factors and other mercantile agents who contract in their own names, but for the benefit of and without disclosing their principals are properly included in that term. Grinnell v. Schmidt, 2 Sandf. 706; S. C., 3 Code R. 19; 8 N. Y. Leg. Obs. 197. By the amendment of the Code in 1851, an explanatory clause was added to section 113, which provided that a trustee of an express trust, within the meaning of that section, must be construed to include a person with whom or in whose name a contract is made for the benefit of another. This amendment was probably intended to give to the original section, in express terms, the same construction that had been given to it by the superior court. Brown v. Cherry, 38 How. 352; S. C., 56 Barb. 635. Under the Code as it now stands, it is well established that the old rule at common law and in equity have, in effect, been thoroughly blended, and that where a contract has been made by an agent in his own name, but for the benefit of his principal, the latter may sue upon the contract in his own name or in the name of his agent at his election. Erickson v. Compton, 6 How. 471; Morgan v. Reid, 7 Abb. 215; Rowland v. Phalen, 1 Bosw. 43; Union India Rubber Co. v. Tomlinson, 1 E. D. Smith, 364; Brown v. Cherry, 38 How. 352; S. C., 56 Barb. 635. So an agent may maintain an action in his own name upon a contract in which he has disclosed the name of his principal, and his representative character as agent, and although he was not personally bound by the contract, and although the promises therein contained were not to him personally but in his official or representative character. The agent is, in this case, also a trustee of an express trust within the meaning of section 113 of the Code. Considerant v. Brisbane, 22 N. Y. (8 Smith) 389; Freeman v. Fulton Fire Insurance Co., 14 Abb. 398 (406); S. C., 38 Barb. 247; Reilly v. Cook, 13 Abb. 255 (258); S. C., 22 How. 93.

The mere fact that an agent may maintain an action as trustee of an express trust does not render it necessary that he should do so to the exclusion of the right of the principal (Union India Rubber Co. v. Tomlinson, 1 E. D. Smith, 364); and the authorities already cited clearly show that the right of

Foreign governments - States.

the agent is not merged in the right of his principal. The action may be commenced in the name of the contracting party under the common-law rule, or may be brought in the name of the party holding the beneficial interest under the rule in equity. But when a choice is to be made between the form of proceedings at law or in equity, that one is to be preferred which is the most direct, consistent and comprehensive; and, in this respect, the rule of equity is less technical and is preferable to the rule at law. Grinnell v. Buchanan, 1 Daly, 538 (547). But while principal or agent may either of them maintain an action, they cannot both sue at the same time. 2 Wait's Law and Prac. 267. Section 2. Foreign governments.

a. When a foreign government may be plaintiff. The right of a foreign government to sue in the courts of England was once a matter of serious doubt, but has since been recognized by the highest courts in the land. Barclay v. Russell, 3 Ves. 431; Nabob of the Carnatic v. East India Co., 1 id. 371; Hullett v. King of Spain, 2 Bligh, N. S. 31; S. C., 1 Dow and Clark, 169; 1 Clark & Fin. 333; King of Spain v. Machado, 4 Russell, 225. So by the constitution of the United States, foreign States are expressly authorized to sue in the courts of the United States. Const. U. S., art. 3, § 2.

The right of a foreign government to sue in the courts of this State has been authoritatively settled by the State courts, and was held to be so plainly a right that a denial of it might be deemed a just cause of war. Republic of Mexico v. Arangoiz, 5 Duer, 634; 11 How. 576; affirming S. C., id. 1. The only limit or condition to the exercise of this right is that the government seeking relief through the courts of this State shall be one whose independence and sovereignty as such are acknowledged by the federal government, and that the two governments shall be at peace with each other. Ib. And see City of Berne in Switzerland v. Bank of England, 9 Ves. 347; Dolder v. Bank of England, 10 id. 353; Dolder v. Lord Huntingfield, 11 id. 283.

Section 3. States.

a. When a State may be plaintiff in the courts of another State. The constitution of the United States permits the several States of the Union to appear as plaintiff in the supreme court of the United States either against another State or against a citizen thereof. Const. U. S. art. 3, § 2. But the jurisdiction of

Counties-Towns.

the supreme court of the United States of a suit brought by a State against the citizen of another State, is not exclusive but concurrent with that exercised by a State court; and it is well settled that the several States of the Union may sue in their respective corporate names in the courts of this State. Delafield v. State of Illinois, 2 Hill, 159; S. C., 8 Paige, 527; Teall v. Felton, 1 N. Y. (1 Comst.) 537; S. C. affirmed, 12 How. (U. S.) 284. And see Hines, v. State of North Carolina, 10 Smedes & Marsh, 529. It is questionable whether the federal courts have any jurisdiction of suits prosecuted by a State, except where the parties on both sides are States. Delafield v. State of Illinois, 2 Hill, 159.

b. When a State may be plaintiff in its own courts. The right of a State to sue in its own courts, for the protection of a right or the redress or prevention of a wrong, is substantially the same as is given to individuals in similar cases. Actions brought by the State are in the name of the people, and are prosecuted by the attorney-general in the same manner as in actions by private citizens, except when some special statute changes the rule. See 1 R. S. 179, 180; 2 id. 553, §§ 13, 14; id. 619, § 38. Section 4. Counties.

a. How counties may sue. The Revised Statutes provide that counties of the State must sue and be sued in the name of the board of supervisors, except where county officers shall be authorized by law to sue in their name of office for the benefit of the county. 1 R. S. 384; Hill v. Board of Supervisors of Livingston county, 12 N. Y. (2 Kern.) 52 (63); Brady v. Supervisors of New York, 2 Sandf. 460. See 7, post. See, also, § 5, post.

Section 5. Towns.

a. How a town may sue. Whenever any controversy or cause of action shall exist between any towns of this State, or between any town and an individual or corporation, such proceedings shall be had either at law or in equity for the purpose of trying and finally settling such controversy, and the same shall be conducted in like manner and with like effect as in other suits or proceedings of a similar kind between individuals and corporations. 1 R. S. 356. These provisions of the statute are substantially the same as those in relation to counties. 1 R. S. 384. In all such suits and proceedings the town shall sue and be sued by its name, except where town officers shall be authorized by law

Corporations.

to sue in their name of office for the benefit of the town. 1 R. S. 357.

A town may maintain an action to restrain the negotiation of bonds, issued in the name of the town, by a person assuming to act as its commissioner, in payment of subscriptions to the stock of a railroad company, when such person is not legally authorized to act in the matter. Town of Duanesburgh v. Jenkins, 46 Barb. 294; 40 id. 574. See Howland v. Eldredge, 43 N. Y. (4 Hand) 457.

But a town cannot maintain an action, in its corporate character, to set aside a contract made between its supervisor and commissioners of highways, and a plank road company, as to the use of a public highway. Town of Galen v. Clyde & Rose Plankroad Co., 27 Barb. 543. Nor can it maintain an action against a commissioner of highways who has received and paid over to tax payers such moneys as were illegally taxed, and collected of them by the town collector. Gailor v. Herrick, 42 Barb. 79.

Section 6. Corporations.

a. Generally speaking, all corporations incorporated by or under the provisions of the laws of this State, may sue and be sued by their corporate name, in the same manner as natural persons. There must, however, be an exception made to the general application of the rule, in the case of municipal corporations. The manner in which States, counties and towns may sue has been briefly pointed out in the preceding sections. The manner in which cities and villages may sue or be sued is generally specified in the charter or act under which they are incorporated. In the absence of any statutory provisions as to the manner in which suits must be brought in such cases, the action should be commenced by the corporation in its corporate name. See Laws of 1870, ch. 291, title 1, § 17.

b. Foreign corporations. A foreign corporation, created by the laws of any other State or country, may prosecute in the courts of this State in the same manner as domestic corporations, upon giving security for the payment of the costs of the suit. 2 R. S. 457 (477). Lombard Bank v. Thorp, 6 Cow. 46; Western Bank v. City Bank of Columbus, 7 How. 238; Mutual Benefit Life Insurance Co. v. Davis, 12 N. Y. (2 Kern.) 569; Persse & Brooks Paper Works v. Willet, 14 Abb. 119. But it is further provided, that a foreign corporation shall not be authorized to maintain any action, founded upon any act forbidden to be done

Corporations.

by any corporation or association of individuals, without express authority of law. 2 R. S. 458. A foreign corporation should sue in its corporate name. Silver Lake Bank v. North, 4 Johns. Ch. 370.

But an agent of a foreign corporation may maintain an action in his own name, on contracts purporting on their face to be made with him as the executive agent of such corporation. Considerant v. Brisbane, 22 N. Y. (8 Smith) 389. And any agent authorized by a foreign corporation to bring an action in its behalf, may bring such action in his own name. Myers v. Machado, 14 How. 149; S. C., 6 Abb. 178. It is only upon giving security for the payment of costs, that a foreign corporation is entitled to all the rights, in the courts of this State, that are extended by statute to domestic corporations. 2 R. S. 457. (477). But the filing of such security is not a condition precedent to the right to sue; and a failure to file this security before the commencement of the action will not affect the jurisdiction of the court. It is an irregularity, merely, that will entitle the defendant to have the suit dismissed on prompt application to the court. But, if the objection is not raised before judgment, the irregularity will be deemed waived. Persse & Brooks Paper Works v. Willet, 14 Abb. 119; Merchants' Bank v. Mills, 3 E. D. Smith, 210; Hartford Quarry Co. v. Pendleton, 4 Abb. 460. The defect may also be cured by filing the proper undertaking, after notice of motion to set aside the plaintiff's proceedings upon payment of the costs of the motion. Bank of Michigan v. Jessup, 19 Wend. 10.

(

The undertaking may be in the following form:

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E. F., in the sum of two hundred and fifty dollars, to be paid to the said E. F., his executors, administrators or assigns, for which payment well and truly to be made we jointly and severally bind ourselves, our heirs, executors and administrators, firmly by these presents.

Sealed with our seals, and dated the

WHEREAS, the (

created by the laws of the State of ( commence an action in the (

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), a foreign corporation, ), is about to

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