Masterson v. Botts — 4 Abb. Pr. 130

Majority

p. 130

MASTERSON a. BOTTS.

New-York Common Pleas;

Special Term, January, 1857.

Headnote

Fire Companies.—Actions by and against.

The acts of 1849 and 1861, allowing joint-stock companies, <Src., to sue and be sued in the name of their presidents or treasurers, do not embrace the fire companies of the city of New-York.

Motion for a new trial.

p. 131

This action was brought in the name of James Masterson, foreman, &c., of Engine Company No. 33, against Julian Botts, foreman, &c., of Engine Company No. 38.

—This action was brought by one of the fire companies of this city to recover from another company the possession of a fire-engine. On the trial, the complaint was dismissed upon the ground that no such action could be maintained in the name of the foreman of one of the companies.

The act of 1849 (Laws of 1849, ch. 258, § 1), provides for the bringing of actions by joint-stock companies having shareholders or associates; but is not sufficient to reach the present case, not being applicable to the case of a fire company.

Nor do I think the act of 1851 (Laws of 1851, ch. 455) is sufficient to enable the plaintiff to maintain this action. By that statute, the provisions of the act of 1849 are extended to companies or associations composed of not less than seven persons having an interest in property, &c. The fire companies are not such associations. They do not own the engines placed in their charge, nor have they any interest therein other than as the agents of the city authorities. They hold them only as such agents, subject at all times to their control, and cannot be considered in any respect as the owners thereof.

The motion for a new trial must be denied.