Saddlesvene agt. Arms. vices (Web. Dict). Bouvier says: "A claim is a challenge of the ownership of a thing which a man has not in possession, and is wrongfully withheld by another. The word claim can have no application to an action for assault and battery, or for libel or slander. It might be applicable in ar action to recover the possession of personal property. The Code requires that the amount of the claim should be specified. It must be something, then, the amount of which in dollars and cents, can be specified. It is a demand of a right or thing withheld, the amount of which can be stated in money. It has no reference, as used in the Code, to damages, though it may be in many actions on contract, that the "claim" and the damages may be the same in amount. Damages are the indemnity given for breaches of contract, or for tortious acts. The Code speaks of damages as something entirely distinct from the cause of action (§§ 276, 277, 154, 261, 263, 386, 387). Turn to section 142 of the Code; the complaint is to contain (sub. 2) a statement of the facts constituting a cause of action; also (3) a demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated. Here is a clear distinction between the cause of action and the relief demanded. In stating the facts constituting the cause of action for assault and battery, nothing is said of amounts of money, but the relief demanded is money, and the amount is stated. In short, the Code throughout distinguishes between the cause of action and the relief to be demanded; and when in sections 227 and 229, it authorizes an attachment" in an action for the recovery of the money," when it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim, and the grounds thereof;" this remedy is confined to actions upon contract, in which the amount to which the plaintiff is entitled can be specified; and it is a wide departure from the fair construction of the language here used, and from the theory and science of the Code, to refer the word claim, to Graham agt. Chrystal. the relief demanded in the complaint, and the word amount, to the sum of money demanded as damages. The order denying a new trial should be reversed, and there must be a new trial, costs to abide event. SUPREME COURT. DEWITT GRAHAM and others agt. PETER CHRYSTAL. Secondary evidence is not admissible, if by reasonable diligence, the original could have been produced. The sufficiency of the proof of the loss of an instrument, is a point addressed to, and determined by the court exclusively: Held, therefore, that a referee having been satisfied that there was not sufficient proof of loss to admit secondary evidence, the court, on appeal, will not say that he erred. New York General Term, May, 1865. Before INGRAHAM, BARNARD and CLERKE, Justices. By the court, CLERKE, J. We see no better reason for disturbing the findings of fact in this case, than in that in which John Graham is plaintiff. The exceptions in this case worthy of any consideration, are with the exception of one, similar to those in the other, and must receive the same disposition. The exceptions have been treated by the counsel in both cases as similar, except that relative to the ruling rejecting parol evidence of the contents of David Graham's notes to the defendant. While admissions made by David Graham, could not bind John Graham, they would bind himself and his representatives. The only question, therefore, on this point is, whether sufficient proof of the loss of the notes was given, to allow secondary evidence of their contents. Secondary evidence is not admissible, if by reasonable diligence the original could have been produced. Graham agt. Chrystal. The degree of digilence depends on the nature of the transaction to which the paper relates, and other circumstances. The sufficiency of the proof of the loss is a preliminary point, addressed to and determined by the court, exclusively, and upon which it has to pass, in view of the peculiar features which characterizes each case as it arises. In the case before us, the witness testified that he had looked for the notes among his papers, and could not find them. He did not say where he had made the search, or that he had made a diligent search. He gave no particulars, and did not state whether he believed they were lost. The referee, who had the witness before him, was undoubtedly the best judge of the reliability of this preliminary proof, and he was satisfied that there was not sufficient proof of the loss of the notes to admit secondary evidence of their contents. We cannot say that he erred in excluding it. I think the judgment should be affirmed, with costs. Bridenbecker agt. Hoard. SUPREME COURT. JOHN W. BRIDENBEKER, Treasurer of the Frankfort Cheese Factory, appellant, agt. JOHN L. HOARD, respondent. An action to recover several penalties under chapter 361 of the laws of 1865, for bringing watered milk to a cheese factory, to be manufactured into cheese, may be maintained by and in the name of the treasurer of the association, against a member of the association. Fifth District General Term, January, 1867. APPEAL from a judgment of non-suit ordered at the Herkimer circuit, in May, 1866, before BACON, Justice. The facts appear in the opinion. S. & R. EARL, for appellant. The action was brought to recover penalties under chapter 361, laws of 1865, for bringing watered milk to a cheese factory. The defendant in his answer, besides a general denial, seems to take two other grounds of defense. (1) That the Frankfort Cheese Factory was not such an association as would enable the plaintiff to maintain the action as its treasurer. (2) That the plaintiff alone could not maintain the action, as there were other persons also interested. The judge at the trial held that the plaintiff could not maintain the action, and excluded the proof, and non-suited him. I. The Frankfort Cheese Factory is such an association or company as can sue in the name of its treasurer. (Laws of 1849, chap. 258; Laws of 1851, chap. 455; N. Y. Marble Iron Works agt. Smith, 4 Duer, 362; Tibbitts agt. Blood, 21 Barb. 650; Corning agt. Green, 23 Barb. 33; Witherhead agt. Allen, 28 Barb. 661; Dewitt agt. Chandler, 11 Abb. Pr. R. 459, 470.) The dictum of Judge SHANKLAND, in Austin agt. Searing Bridenbecker agt. Hoard. (16 N. Y. 112), is without reason, and wholly unauthorized. II. Even if this were not so, the incapacity of the plaintiff to sue, and the defect of parties, appear upon the face of the complaint, and hence this objection could only be raised by demurrer and not by answer, and is waived in this case. (Code, SS 144, 147, 148; Ingraham agt. Baldwin, 10 How. 162; Baggett agt. Bardger, 2 Duer, 160; Gassett agt. Crocker, 10 Abb. 133; Dennison agt. Dennison, 9 How. 246; Zabriskie agt. Smith, 3 Kern. 322, 336; Fosgate agt. The Herkimer Manufacturing and Hydraulic Co. 12 N. Y. 580.) And when a cause of action is set forth in the complaint, in favor of some one against the defendant, it cannot be said that the complaint does not state facts sufficient to constitute a cause of action. (Bank of Lowville agt. Edwards, 11 How. 216; Vibert agt. Frost, 3 Abb. 120; Myers agt. Machado, 6 Abb. 198; Hobert agt. Frost, 5 Duer, 672.) III. At all events, the action is properly brought under chapter 361, laws of 1865. All that the statute requires is, that the suit should be "for the benefit of the person or persons, firm or association or corporation, or their assignees, upon whom such fraud shall be committed." This action is brought for the benefit of the association by the plaintiff, who is a member and the acting treasurer. IV. The fact that the defendant was a member of the association, can make no difference. Under the statutes of 1849 and 1851, an action can be brought in the name of the president or treasurer, against a member in a proper case, as well as against any other person. In reference to the commencement and defense of actions, these associations under the statutes, are clothed with corporate powers. See section 5, of the law of 1849. Unless this were so, the object of these statutes would, in many cases, be defeated. V. But if we are so far wrong, then this action may be treated as an action by Bridenbecker alone, against the defendant, and all the allegations as to his representative |