text:
    THOMAS W. PITTMAN and another, Respondents, v THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Commissioners of estimate and assessment in New York— Taxation of costs of— cannot be attacked collaterally — Counter-claim—Tern. St., mb. 10, § 18, title 2, chap. 6, pt. 3 — §§ 1-5, chap. 483, Laws of 1862.
    The plaintiffs’ claim for services performed and expenses incurred as commissioners of estimate and assessment, was presented for taxation as required by law, was taxed before a referee, and such taxation was confirmed by the court. In an action brought against the city for the recovery of the amount so taxed, the defense interposed, was, that such amount exceeded that warranted by the provisions of the statute. Held, that the taxation could not be attacked collaterally; that it was conclusive against the defendant, until set aside in proceedings taken directly for that purpose.
    The answer set up a counter-claim existing in the defendant’s favor, against one Purser, who, it was stated, was entitled to receive or had been paid $1,538.13 of the amount allowed to the commissioners. Held, that these facts did not constitute a counter-claim under section 150 of the Code, nor under the provisions of subdivision 10, section 12, 3 Revised Statutes (5th ed.), page 635 (sub. 10, § 18, title 2, chap. 6, pt. 3, Rev. St.), relative to actions by trustees, etc.
    Appeal from a judgment recovered under an order striking out the answer served by the defendant as frivolous.

      E. Delafield Smith, corporation counsel, for the appellant.
    If the papers on their face show that the referee has allowed, and the court has confirmed an allowance in direct violation of the statute, such an allowance is not binding upon the city. The costs provided for — the costs they are permitted to tax — are the costs authorized by the act. The taxation is binding to that extent; beyond it, it is not voidable merely, but void. The distinction between law and equity is abolished by the Code. (Cowles v. Cowles, 9 How. Pr., 362.) If Mr. Purser is the realparty in interest, then the counterclaim may be set up. (Cowles v. Cowles, 9 How., 361.) In the case of Bliss v. Bliss (7 Bosw., 339), the principles controlling this question are fully discussed.

      Allison (& Shaw for the respondents.
    The appeal is to be decided on the same principles, and in the same manner as if a formal demurrer had been interposed and sustained. (Wilkin v. Raplee, 52 N. Y., 248, 250; Manning v. Tyler, 21 id., 567, 569, 570; Martin v. Kanouse, 2 Abb. Pr., 327; Wesley v. Bennett, 5 id., 498; Witherhead v. Allen, 28 Barb., 661, 668, 669; East River Bank v. Rogers, 7 Bosw., 494, 497, 498; Griswold v. Laverty, 12 N. Y. Leg. Obs., 316.) But the motion for frivolousness was properly granted in pursuance of the rule, that a decision in point adverse to the sufficiency of a pleading, is good ground for treating it as frivolous. (People v. McCumber, 15 How. Pr., cited from page 192; Bank of Wilmington v. Barnes, 4 Abb. Pr., 227.) The only point made is that the referee taxed a greater sum then he should have taxed, and that the court sustained and confirmed this taxation. To this the answer is that the bill of costs is made a part of the assessment to be included in the commissioners’ report, and that report, when confirmed by the court,is made final and conclusive by express provisions of law. (Valentine’s Laws, pp. 1198-1207; Laws of 1813, chap. 86, §§ 178-189.) The confirmation of the report, including the taxed costs as part of the assessment, is final and conclusive upon the question of the amount of costs so taxed and included. The question of costs can not be reviewed in a collateral proceeding. (Matter of Seventy-sixth Street, 12 Abb. Pr., 317, 319; Matter of Sixty-fifth Street, 23 How. Pr., 256; Matter of Tenth Avenue, MS. opinion of Babbett, J., Nov. 17, 1874.) The general rule of law is, that a judicial taxation of costs is final and conclusive and cannot be questioned in a suit brought to recover moneys, the amount of which is fixed by such taxation. (Supervisors v. Briggs, 2 Denio, 26; Supervisors v. Briggs, 2 Hill, 135; White v. Coatsworth, 2 Seld., 138; see opinion of Edmonds, J., p. 143; Powers v. Witty, 42 How., 352.) If the allowance be an act void, for want of jurisdiction, then the assessment is also void for the same reason. (Mutter of Seventy-sixth Street, 12 Abb. Pr., cited from p. 319; Mutter of Sixty-fifth Street, 23 How. Pr., cited from pp. 257, 258; Valentine’s Laws, p. 1207, § 189 of the act of 1813; Valentine’s Laws, pp. 1232, 1233, § 5 of the act of 1862.) The act of 1862 has been held inapplicable to such proceedings as the one in controversy-, by express adjudication in this district. (Matter of Broadway, MS. opinion of Gilbert, J.; Mutter of Northern Boulevard, MS. opinion of Fancher, J.; Matter of Kingsbridge Road, MS. opinion of Pratt, J.) The alleged counter-claim is not a counter-claim against the plaintiffs or- either of them. The taxed costs belong to plaintiffs and not to the person against whom the counter-claim is set up. (People ex rel. Bagley v. Green, 1 Hun, 1; People ex rel. Purser v. Green, 1 id., 86; Code, § 150; 2 R. S. [Edms. ed.], p. 365, § 18.) If the person against whom the counter-claim is alleged to exist was plaintiff herein, the counter-claim could not be sustained. The taxation of those costs and the confirmation of that report were final and conclusive. The sums for which a counter-claim is sought to be made were paid and cannot be recovered back. Especially is this true in the absence of any allegation that the payment was not voluntary, or that it was made under any mistake. or through any fraud. (Supervisors v. Briggs, 2 Denio, 26; Supervisors v. Briggs, 2 Hill, 135.)
   Daniels, J.:

The demand for which the judgment was recovered, accrued for services performed, and expenses incurred, by the plaintiffs and Nicholas Muller, as commissioners of estimate and assessment, in opening and widening One Hundred and Tenth street, in the city of New York. The demand made greatly exceeded what, by the act of 1862, could be properly allowed for such services and expenses. But the complaint avers, and the answer substantially and practically admits, that, before the commissioners’ report was presented for confirmation, a bill of the costs, charges and expenses of said proceeding, was duly presented by the counsel for the corporation for taxation, in the manner required by law, and the same were taxed and allowed by a referee duly appointed by the Supreme Court, at the sum of $8,916.71 costs. And the bill so taxed was afterward reported, with the commissioners’ proceedings, to the court, and by it confirmed. The defense which the answer interposed to the recovery of such costs and expenses, was, that they were allowed at an amount exceeding that warranted by the provisions of the statute. But as the bill was adjusted in the mode provided by the statute, and at the instance of the counsel for the corporation, and afterward confirmed by the court, this objection comes too late. The remedy of the defendant for the correction of the bill, was by a direct proceeding for a readjustment of the amount allowed. It was adjusted by a judicial proceeding, instituted, carried on, and consummated in the manner provided by the statute. That necessarily rendered the adjustment conclusive against the defendant, as long as the proceedings taken 'were not vacated or set aside, but remained in force. They could not be questioned or annulled in the collateral mode proposed by the answer.

The court had complete jurisdiction over them, and of the parties affected by them, and that was sufficient to bind the defendant by the adjudication which was made. In this action, afterward brought to recover the amount awarded, no power exists to correct the errors by which that may have been improperly and unlawfully enhanced. That was held to be the law in the case of Supervisors of Onondaga v. Briggs. The answer further alleged a counter-claim, existing in the defendant’s favor against George H. Purser, who, it was stated, was entitled to receive, or had been paid, the sum of $1,538.12 of the amount adjusted and allowed in favor of the commissioners. These facts are insufficient to create a counter-claim within the provisions made by the Code. They require that the claim shall be one existing in favor of a defendant against a plaintiff, between whom a several judgment may be had, arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s demand, or connected with the subject of the action, or a cause of action arising on contract. The claim made by the" answer was not- one existing against the plaintiffs or either of them; and, for that reason, not within either provision made by that section of the ’Code, prescribing the nature of the demands which may be set forth by way of counter-claim. For substantially the same reason, it was not proper by way of set-off, under the statutory provisions made upon that subject. The only one under which it might possibly have been brought, is that relating to actions by trustees or persons having no real interest in the contract or debt constituting the subject of the action, And the facts alleged were not sufficient to bring the claim within that provision, because it was not stated that the plaintiffs were endeavoring to collect it for Purser. If that were the fact, it should have been so stated with reasonable certainty. That was not done, for all that was set forth in the answer, in that respect, was, that the amount mentioned was for money paid, or claimed to be due Purser for services as clerk. If the latter had been the fact, it should have been averred, for if the plaintiffs have paid Purser, as they may have done according to this answer, then the amount due from him to the defendant would not be a proper set-off. The answer also shows that the amount received by Purser, was taxed and allowed at the sum-paid him by the defendant, by a justice of the Supreme Court, and was included in the report of the proceedings in which it was claimed to have arisen, and confirmed by that court. According to this statement, the defendant had no valid or legal demand which could be insisted upon 'as a counterclaim or set-off; for it could not question or assail the proceedings by which that claim was allowed and paid in the collateral mode proposed by the answer. That could only be done by a direct application for a rehearing as to Purser’s claim, as-long as its allowance was not claimed to have been produced by fraud. So long as the proceedings mentioned remain in force, the defendant can maintain no claim for the recovery of the money paid pursuant to them. The judgment should be affirmed, with costs.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed with costs.

       Laws of 1862, chap. 483, §§ 1, 5.

      3 Hill, 185; 8. O., 8 Denio, 36.

       Code, § 150.

       3 R S. (5th ed.), 635, sub. 10 of § 12.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    WILLIAM C. DE HART, Respondent, v. RUFUS HATCH, Appellant.

      State Constitution, art. 6, § 6—Supreme Cowrt—jurisdiction of—power• of legislature oner'— Order transferring action—when appealable.

    The Constitution of this State, article 6, section 6, confers upon the Supreme Court general jurisdiction in law and equity, and the legislature has no power to abridge or limit such jurisdiction, either with or without the consent of that court.
    Chapter 299 of the Laws of 1872, and chapter 545. of the Laws of 1874, providing that any of the courts therein named, may, by an order to be entered on its minutes after the joining of issue, transfer actions pending therein, of the classes therein specified, to the Marine Court for trial, are unconstitutional and void. Either party to -an action in the Supreme Court, is entitled to have the case tried in and determined by that court, and such right cannot be taken away either by the legislature or the court, without his consent.
    An order directing the transfer of an action in pursuance of these acts, is appeal-able (1), as affecting a substantial right, and (2), as involving the constitutional validity of the legislative provisions under which it was made.
    Appeal from an order transferring this action to the Marine Court of the city of Hew York. «
    This" action, which was brought in the Supreme Court, to recover damages for slanderous words published and spoken of the plaintiff by the defendant, was transferred to the Marine Court by an order made in pursuance of chapter 629, Laws of 1872, and chapter 545, Laws of 1874. Section 12 of chapter 629, Laws of 1872, provides: “ * * * , and any other court of record in the city and county of Hew York, shall have power, by an order to be entered by its direction on its minutes, to send any action of libel, slander, assault, battery, criminal conversation, seduction, malicious prosecution or false imprisonment, pending, or that may hereafter be brought in said courts of record, after issue has been joined therein, to the said Marine Court, for trial, and a certified copy of such order shall be delivered to and filed with the clerk of the said Marine Court and entered by him in its minutes, and thereupon the said Marine Court of the city of Hew York, shall have immediate and exclusive jurisdiction of such action, and the said jurisdiction of the said court as to the amount of the recovery in such action, costs and additional allowances therein, shall, for the purposes of such action, be the same and as full and comprehensive as that of the court from whence the same proceeds.”
    Section 4 of chapter 545, Laws of 1874, is as follows: “ Any other court of record may in its discretion, by an order to be entered on its minutes, after the joining of issue, send any action pending therein, or that may hereafter be brought therein, to-the said Marine Court for trial, and a certified copy of such order shall be delivered to and filed with the clerk of said Marine Court and be entered by him on its minutes, and thereupon the said Marine Court shall have immediate and exclusive jurisdiction of such action as full and comprehensive in that particular as that of the court from whence the same proceeds.”

      Edwcvrds Pierr&pont, for the appellant.

      O. P. JBuel, for the respondent.
   Daniels, J.:

The object of this action is the recovery of damages, for speaking and publishing certain slanderous words concerning the plaintiff!, in his occupation of a seaman. He was mate of a steamship, and the words alleged to have been uttered, imputed to him unfitness and incompetency in that capacity. By reason of them, he alleges that he was discharged from his position, and has since been unable to procure employment. The damages claimed for the in jury sustained, are the sum of $20,000. After issue was* joined in the case, the court, on motion of the plaintiff, directed it to be transferred to the Marine Court of the city of Hew York. This transfer was directed, under the authority created by chapter 629 of the Laws of 1872, and chapter 545, of the Laws of 1874. By subdivision 12 of section 3 of the act of 1872, it was provided that any court of record in the city and county of HewYork, should have power, by an order entered under its direction in its minutes, to send any action of libel, slander, assault, battery, criminal conversation, seduction, malicious prosecution, or false imprisonment, then pending, or afterward brought in such court, after issue joined therein, to the Marine Court for trial; and by section 4 of the act of 1874, the same authority was provided for any court of record, in its discretion, to send any action pending in it, or afterward brought in it, by the same proceeding after issue’joined, into the Marine Court for trial, The terms, in each instance, used to create and confer this authority, it will be seen, require no motion or consent of the parties or either of them to the transfer, in order to warrant the direction. But if it can properly be done at all, the power may be exercised by the courts at their own instance or inclination, or on motion of either of the parties. Under the first act, the court may direct all the actions of the description given in it, to be at once transferred to the Marine Court, subject only to the qualification that issue shall have been at the time joined in them ; and, under the second, all actions, of every nature and description, may be, in like manner, transferred to that court by any court of record in the State. If the act of 1872 be' constitutional and.valid, then this court, the Superior Court and the Court of Common Pleas, may at once transfer every suit, of the description already mentioned, into the Marine Court for trial. Under the act of 1874, the same thing may be done by all courts of record, in all classes and descriptions of cases. For the exercise of the authority has not been rendered dependent on the assent of the parties, or either of them, in the action. This legislation is certainly novel, as well as important. In the enactment of the Code, provision was made for a somewhat similar transfer of equity cases and issues of law, pending in this district, from this court to the Superior Court, But as this was construed, it was designed to include the cases which had been previously transferred to the new court from the preceding Supreme Court and Court of Chancery, and, for that reason, rendered specially subject to legislative control. While all those cases were vested in the newly formed Supreme Court by the Constitution of 1846, it had only such power to hear and determine them, as should be prescribed by law. The subject-matter of both sections, contained in the Constitution concerning them, was the same, except that one included more than the other. The fifth section related to all suits and proceedings pending in the preceding courts, while the sixth section included all such suits and proceedings as should he ready for hearing on the first Monday of July, 1847; and the general qualification followed both, that the new court should have power to hear such of those suits and proceedings as might be prescribed by law. But even if this qualification should be restrained in its application to the cases ready for hearing on the first Monday of July, 1847, the result would remain the same, for the cases in the preceding courts were not included in the general jurisdiction given to the new court. That provision, under a well established rule of construction, was prospective in its nature, and did not include the cases pending in the old courts. The convention, for that reason, found it necessary to make them the subject-matter of distinct constitutional provisions, and they did that by the sections already referred to. These sections, at most, simply vested the previously pending cases in the new court, without specifically providing what should be done with such of them as the preceding Supreme Court and Court of Chancery should not be able to dispose of by trial and hearing; and they were left by that circumstance, even if no provision had been made for legislation, the proper subjects of legislative interposition, which, of itself, would render the legislation of 1848, concerning them, entirely valid. Heither this legislation, nor the provisions made by law for transferring indictments from one court to another, constitute any well established precedent for the acts of 1872 and 1874; for those relating to the transfer of indictments from one court to another, simply regulates the practice in courts and cases wholly under the unrestrained control of the legislature, and the legislation concerning the cases pending in the courts, existing before the Constitution of 1846 went into effect, was well warranted by the special provisions it contained for the disposition of that unfinished business. The power of the legislature to enact the provisions fdr the transfer of actions at issue from this court to the Marine Court, stands upon no such authority, and its existence cannot be in any manner supported by the precedent of any antecedent legislation of the same description. Whether it be valid or not, must depend solely upon the constitutional provisions existing at the time.of its enactment. But, before considering that point, it will be necessary to dispose of the objection taken on the part of the respondent, that the order itself is not appealable. If the parties have, the right, under the Constitution, to have the issue joined in their action tried in the circuit, its denial would seem to affect a substantial right, and, for that reason, to form the proper subject of an appeal to the General Term. , The case of Illius v. New York and New Haven R. R. Co. in the reasoning of the opinion, though not in the decision made, which merely dismissed the appeal in that court, supplies some force to the objection; and it was maintained as a proper one, in the recently decided case of Alexander v. Bennett, in the Superior Court. But with all deference for the decision of that tribunal, this conclusion is believed to be erroneous: for all orders are now appealable to the General Term, even though involving the exercise of discretion, which affect any substantial right, and that principle has been heretofore applied to an order of this description, in the case of Cooke v. National Bank of Boston. The order which was made is also expressly rendered appealable, because it involves the constitutional validity of the legislative provisions under which it was made. Owing to that attribute of the controversy, an appeal may not only be taken from it to the General Term, hut, after a decision upon it there, to the Court of Appeals, where the merits of the controversy may be finally considered and determined. The validity of the provisions under which the order was made, must be therefore regarded as properly before this court for its examination and decision. They are assailed, first, because they are contained in acts of a local character, and are not embraced in their subjects, as expressed in their titles. That point was fully examined in the opinion of the chief justice of the Superior Court, in the case already referred to, and held to be untenable. This was concurred in by at least one of his associates, without apparent dissent from either of the other justices participating in the decision. That conclusion may be properly followed in this case, for the reasons there given in its support.

The second objection is of a more serious and formidable nature, depending on a different provision of the Constitution, which declares that “There shall he a Supreme Court having general jurisdiction in law and equity.” A similiar objection was considered by the learned chief justice of the Superior Court, arising under another provision of the Constitution, in disposing of the case decided by that court, but with no extended examination of it. There was no necessity existing in that case for its particular discussion after the-conclusion was adopted, that the order was not appealable, and it was, after a very brief consideration, determined to be without support, and the order of the Special Term affirmed. This determination seems to have secured the approbation of but one of the other justices of the court, and it was opposed by an able opinion written by Mr. Justice Sedowiok, in which another of the associate justices concurred. This substantially neutralized the effect of the decision upon this point, and it can now be properly considered solely under the effect of the provision made by the Constitution. By the provision required to be considered and construed in- the disposition "of this case, the only court of general jurisdiction throughout the entire State was established. It provided that there should be a Supreme Court having general jurisdiction in law and equity. The terms used are so comprehensive, that they include all cases of every description in law and equity, from the most important and complicated to the most simple and insignificant, and they imperatively and positively establish the court with that extended jurisdiction. The language made use of, is, that there shall be such a court, having the jurisdiction declared; and that was given to it, not to be exercised or declined as the legislature might afterward provide or enact, or as that body and the court combined should at any time elect, but for the purpose of being at all times maintained and preserved for the benefit of those who might be parties to controversies in either law or equity. The jurisdiction conferred upon the court, included both the power t,o entertain, progress, and, in the end, determine all civil actions, and the duty also to do those things; and for that reason, suitors in such cases have the right to require them to be done. The jurisdiction was conferred for their benefit, and to secure and promote the stability and good order of the State. It was rendered permanent and uniform in its nature, and as those attributes are provided for it by the fair import of the Constitution, it has not been left to the legislature either to abridge or limit them by any interposition on its part. For, if anything of that kind can be accomplished by legislation, then the jurisdiction can be by law abridged and reduced; and that would so far nullify the provision that there shall be such a court as the Constitution has described, as such legislation might be made to extend. From the nature of the unqualified jurisdiction created, the legislature very clearly could not have provided that the Supreme Court should not have the power to entertain, hear and decide the cases enumerated in the act of 1872. If that could be done, then the jurisdiction of the court would depend upon the legislature instead of the Constitution; and if it should- be done, the court would no longer have general jurisdiction in law and equity, as the Constitution has provided that it shall have. If the legislature can declare that the court shall have no jurisdiction over one class of cases, it may do so as to all, and in that way the provision contained in the Constitution could be completely abrogated. A law of that description, would hardly be claimed to be capable of being sustained ; and yet the difference between such legislation and that embodied in the acts of 1872 and 1874, is neither substantial nor real. If the legislature cannot restrict the jurisdiction of the court, its inability results from the positive declaration contained in the Constitution, as to what its attributes and character shall continue to be; and that will prevent the same thing from being done by the combined action of the legislature and the court together. The court has no legislative authority, and no power to decline or refuse the jurisdiction provided for it by the Constitution. If it had, it might impair and abridge its jurisdiction so far as to render the tribunal comparatively useless, which, the Constitution has declared, shall be the most comprehensive in the State. Upon this subject, neither the court nor the legislature has any power of election whatever. The court exists solely under the Constitution, and while it does so, it must be what that instrument has declared it shall be : a court of general jurisdiction in law and equity. And that includes the authority, as well as the duty, of hearing and deciding all actions of a legal or equitable nature; for the term, general, includes all.

The nature of the provision made by the legislature, is not changed by the circumstance that the election of the authority to transfer its causes, has been, in terms, given to the court. For the Constitution has not rendered the jurisdiction subject to any such election; and, as the legislature has no power by a direct act to restrict that jurisdiction, it cannot empower the court to do what it is without authority to do itself. Before the power can be delegated, authority must be found warranting the delegation of it. The court has not, and cannot have, any choice to exercise upon this subject. If it had, then it could hold that it would not be a court of general jurisdiction, although the Constitution has declared that it shall be. If the court could do that, it could abrogate the provision made for its own existence. The existence of such authority anywhere, must be plainly incompatible with the positive declaration contained in the Constitution. In the nature of things, both cannot co-exist. That an abridgment of the jurisdiction of the court will be produced by sending causes at issue in it to another court for trial, can scarcely admit of a doubt. The act itself is equivalent to a refusal to hear and determine the cases which may be transferred. It must necessarily place them beyond the authority of the court making the transfer. To that extent, it involves a complete surrender or restriction of its own constitutional authority; for, after that, the court must cease to be a court having jurisdiction to hear and decide the cases transferred to another tribunal. If the transfer could be lawfully made, the performance of that act would place the causes affected by it, beyond its authority and out of its jurisdiction. As to them, it would no longer he what the Constitution has declared it shall be: a court of general jurisdiction in law and equity. Whether such authority be exercised positively by the legislature, or by the court acting by its permission, the effect must be the same. For, so far as it may be resorted to, it must deprive the court of all jurisdiction over the cases transferred to another tribunal by means of it, and that, the Constitution has not permitted to be done.

Ho validity to the transfer can be derived from the assent of one of the parties to the controversy. For each is equally entitled to the preservation of the right, provided by the Constitution, that the jurisdiction of the court shall be maintained and preserved for the disposition and determination of actions pending in it. After the action has been once commenced, the defendant has the right to require that the case shall be heard and decided by the court, unless it may be voluntarily abandoned or dismissed by the act of the court itself. He, equally with the plaintiff, can insist that the jurisdiction provided by the Constitution shall be observed and maintained for the purpose of giving him a hearing, and,adjudicating as to his rights. If both consented, an entirely different case would be presented, for even a constitutional right may be surrendered by consent. But without such consent, the court cannot, as it attempted to do by the order, deprive' itself of the j urisdietion over the action, which the Constitution in terms required to be maintained.

The order should be reversed, and the motion denied, but, under the circumstances, without costs.

Davis, P. J., and Beady, J., concurred.

Order reversed and motion denied, without costs.

       Vol. 2, Laws of 1872, 495.

       Laws of 1874, 731.

         Code, §§ 47, 50.

       Giles v. Lyon, 4 Com., 600.

       Const. of 1846, art. 14, §§ 5, 6.

      3 Kernan, 597.

       Dowdy v. Poullain, 9 Sup. Ct. Rep. (2 Hun), 218; Security Bank v. Bank of Commonwealth, id., 287; Matter of Duff, 41 How. Pr., 350; Gray v. Fisk, 53 N. Y., 630.

       1 Lansing, 494.

       Code, § 11, subd. 4.

       Art. 6, § 6 of Const.

       Gracie v. Freeland, 1 Com., 228, 232.


author: WE6TBBOOK, J. :

text:
    B. C. GRAY and others, Respondents, v. THE NEW YORK AND VIRGINIA STEAMSHIP COMPANY and others, Appellants.

      Stockholders — right of, to maintain action for frauds of director's — suit by some, for' benefit of aU— Code, § 119 — Fraudulent purchaser of corporate property—proper' pcurty to action— cannot avoid suit by setting up that purchase-price is not offered to be returned.

    A stockholder in a corporation, on behalf of himself and other stockholders similarly situated, may maintain an action against such corporation and its directors to set aside and enjoin transactions done by such directors in the name of the corporation for their own personal gain and benefit, and in fraud of the rights of the plaintiffs and other bona fide stockholders, when the directors have been requested to bring such action and have refused.
    In such action it is proper to make the purchaser of the corporate property a party (alleging him to be a co-conspirator with the directors), without offering to return to such purchaser the money paid for such property.
    A principal who adopts a fraud of an agent, by taking its fruits, has no standing to maintain an action to set aside the fraudulent act; but when the party implicated has aided an agent in committing the fraud upon a principal, and was, in fact, a party to it, he cannot make this point when the fruits of the transaction have not come into the hands of the principal.
    Appeal from orders of the Special Term, overruling demurrers to the complaint.

      S. •.P. Wash, for the appellant,
    The Old Dominion Steamship Company. Assuming that a cause of action is shown by the complaint against the' other defendants, it is apparent that none is shown, in this action, against The Old Dominion Steamship Company. -As to The Old Dominion Steamship Company the charge is, that the transfer was received, with full knowledge that the directors of the selling company had no authority to to make the sale, and that the transaction was in pursuance of a fraudulent arrangement between the directors of the two companies. On these allegations it would undoubtedly have been competent for the selling company to rescind the sale, and return the shares of stock received as the consideration of it. But they do not offer to buy up and restore the stock which was given for the sale, and which is still outstanding, nor to refund any money received as the avails of it. The complaint proposes to keep what has been received, and at the same time to rescind the sale. This cannot be done. (Cobb v. Hatfield, 46 N. Y., 533; Curtiss v. Howell, 39 id., 211; Ely v. Mumford, 47 Barb., 629.) The plaintiffs, as stockholders simply of the selling company, have no cause of action against The Old Dominion Steamship Company. A rescission, for violation of authority in an agent or subordinate, stands upon the same footing as a rescission on the ground of fraud. The principal may overlook the excess of authority, may receive the fruits of the transaction and ratify it, or he may rescind. He cannot do both. The Hew York and Virginia Steamship Company, under the management of a reformed board, could not have rescinded the sale of the ships without returning the stock. The plaintiffs, as simple shareholders, cannot, do more.

      Smith de Woodward, for the appellants,
    The Hew York and Virginia Steamship Company, F. Skiddy, G. Heineken, and H. 0. Von Post. The plaintiffs, as stockholders of the corporation (The New York and Virginia Steamship Company), cannot maintain this action. They were not authorized under the statute to institute or maintain proceedings for the dissolution of the corporation. Nor has a stockholder of such a corporation legal capacity to sue the corporation and its directors, trustees or other officers, for an account in respect to the management and disposition of the property of the corporation, and to set aside a transfer of any of its property.' Yet, no authority whatever is given to a stockholder to institute any such proceeding, or to obtain at his or their suit any judgment of dissolution. The suspension of business (referred to in § 46, 2 R. S., 464) does not ipso facto work a forfeiture, but is merely a ground upon which a forfeiture may be adjudged. (Bank of Niagara v Johnson, 8 Wend., 645; Mickles v. Rochester City Bank, 11 Paige, 118; Matter of Reformed Presbyterian Church of New York, 7 How. Pr., 476; Caryl v. McElrath, 3 Sandf., 176; People v. Manhattan Co., 9 Wend., 351; Slee v. Bloom, 19 John., 456; Attorney-General v. Bank of Niagara, Hopkins, 354.) In the absence of a statute which expressly authorizes some particular individual or class of persons to institute proceedings to obtain a judgment of forfeiture, such proceedings can be instituted only by the people. The decisions are that the fact of forfeiture cannot be investigated collaterally, or set up as a cause of action or defense in collateral proceedings; and until the government sees fit to interfere, no one can take advantage of the forfeiture. (Trustees of Vernon v. Mills, 6 Cow., 23; Mechanics' Building Association v. Stevens, 5 Duer, 676; Jones v. Dana, 24 Barb., 395; 9 Cranch, 51; 4 Wheaton, 698.) Proceedings to enforce the forfeiture claimed to have been incurred in this ease, should have been brought in the name of the people, and under sections 430 and 431 of the Code. This court has no jurisdiction over corporate bodies, either under the principles of the common law or through its general equity powers, for the purpose of restraining their operations, with a view to a dissolution, or to take away corporate rights and franchises. (Howe v. Deuel, 43 Barb., 504; Latimer v. Eddy, 46 id., 61.) If the proceedings are to be instituted on the equity side of the court, still they cannot be taken by a stockholder, but should be taken by the Attorney-General, in the name of the people. (Howe v. Deuel, 43 Barb., 504; Latimer v.
      Eddy, 46 id., 61; Belmont v. Erie Railway Co., 52 id., 637; The People v. Same, 36 How. Pr., 129; Ramsey v. Erie R. W. Co., 38 id., 193; Smith v. Metropolitan Gas-Light Co., 12 id., 187; Galwey v. U. S. Steam Sugar Refining Co., 36 Barb., 256; Gilman v. Greenpoint Sugar Co., 4 Lansing, 482; Code, § 430; see Laws 1870, ch. 151, p. 421, §§ 2, 3, 4, 5.) And the fact that fraudulent acts or conspiracies are charged in the complaint against the directors, does not in this respect alter the result, or give the stockholders any better right to maintain the action. (Howe v. Deuel, and Latimer v. Eddy, supra; Belmonte v. Erie Railway Co., 52 Barb., 637; Treadwell v. Salisbury Manufacturing Co., 7 Gray, 393; Browne v. Monmouthshire R. W. & Canal Co., 13 Beav., 32; 15 Jur., 475; Abbott v. Merriam, 8 Cush., 589.) It is said in this case the plaintiff asks for such dissolution. That is so, in the complaint, but such an application can only be made by the Attorney-General (Code, § 430; Smith v. Metropolitan Gas-Light Co., 12 How. Pr., 187), or by the parties specified in section. 35 of the Revised Statutes, above referred to. (Abbott v. Merriam, 8 Cush., 588.) The directors and other officers and agents are amenable only to the corporation, and to give every individual stockholder a right of action would lead to a multiplicity of suits.

      John F. Balcer, for the respondents.
    The officers of a corporation are trustees, and a court of equity will hold them responsible for every breach of trust. (Code, §§ 159, 167; Story’s Eq. PL, § 213; Willard’s Eq., 751; Cunningham v. Pell, 5 Paige, 607; Robinson v. Smith, 3 Paige Ch., 222, 233; Hussey v. Veazie, 24 Maine, 12; Abbot v. The American Hard Rubber Co., 33 Barb., 578, 584; 21 How. Pr., 193; Heath v. The Erie R. Co., opinion of Blatchfood, J., April 27, 1871, and authorities there cited, 8 Blatehford, 347; Bach v. The Pacific Mail S. S. Co., 12 Abb. Pr. [N. S.], 373; Cumberland Coal Co. v. Sherman, 30 Barb., 553; Angell & Ames on Corp., §§ 305, 312, 391; Crook v. Jewett, 12 How. Pr., 19; Butts v. Wood, 38 Barb., 181; affirmed, 37 N. Y., 317; R. S., title 4, chap. 8, part 3, §41; Phoenix Bank v. Donnell, 40 N. Y., 410, Grover, J., p. 414; Peabody v. Flint, 6 Allen, 52; Gray v. Lewis, Eng. L. R. [8 Eq. Cases], 526, 541; Atwool v. Merryweather, Eng. L. & Eq. [5 Eq. Cases], 464, note; Hoole v.
      Great Western R. Co., 1867, Eng. L. R., 3 Chan. App., 262.) It is a well established principle in equity pleading, that, if other parties participated with the directors in the fraud on the corporation, they may be joined as parties defendant. Henderson v. Jackson, 9 Abb. [U. S.], 294, 297; Heath v. Erie R. Co., U. S. Court Southern District, April 27, 1871, 8 Blatchford, 347; Richtmyer v. R., 50 Barb., 59; Quigley v. Walter, 2 Sweeney, 175; Peabody v. Flint, 6 Allen, 52; March v. Eastern R. R. Co., 4 N. H., 548; N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y., 592; Vide N. Y. & N. H. R. R. Co. v. Schuyler, 17 id., 606; Adriance v. Roome, 52 Barb., 411.) The complaint states facts sufficient to constitute a cause of action. It shows fraudulent acts of the directors, and of the Old Dominion Company, acting collusively against the stockholders. (The People v. The Mayor, etc., 17 How., 62.) The demurrers cover the whole bill of complaint. If the complaint is good in part, the demurrers must be overruled. The complaint sets up facts sufficient to require an answer. (Story’s Eq. P1., § 443; Stuyvesant v. Mayor, etc., 11 Paige, 414; Livingstone. Story, 9 Peters, 632; 14 Abb., 379; Emery v. Pease, 20 N. Y., 62; Gook v. Chase, 3 Duer, 643; 42 Barb., 288.) If the prayer of the complaint goes beyond what the facts alleged authorize, the remedy is by motion to strike out. (Lord v. Vreeland, 13 Abb., 195.
   WE6TBBOOK, J. :

The complaint in this cause may be thus briefly stated: The plaintiffs are severally large stockholders in the defendant corporation, The New York and Virginia Steamship Company. That company was incorporated by a • special act of the legislature of this State, to establish a line of steamships between New York and Richmond, and for other purposes set out in the complaint. In July, 1867, whilst the company was doing a prosperous business, the individual defendants, who are appellants, being the directors thereof) for their own gain and advantage, and for the purpose of defrauding the plaintiffs and other stockholders, unlawfully and fraudulently sold to The Old Dominion Steamship Company, the other corporation defendant, the steamships belonging to The New York and Virginia Steamship Company, at a sum far.less than their value. That they received in pay for such steamships 4,000 shares of the stock of The Old Dominion Steamship Company, which latter company are now in possession of the vessels. And the whole transaction is charged to have been done for the purpose of breaking up and ruining The New York and Virginia Steamship Company, for the personal benefit of such individual defendants and their confederates.

The complaint further avers that the sale aforesaid, was made to, and received and accepted by, the said The Old Dominion Steamship Company, with full knowledge that said directors had no right, power or authority to make the said sale and transfer, and that the same was made and consummated under some secret and fraudulent agreement between said directors and'said defendant. The Old Dominion Steamship Company, its officers and agents were to be mutually benefited, and were to derive large pecuniary profits and advantages at the expense of, and in fraud of, the rights of these plaintiffs and the other stockholders of the said The New York and Virginia Steamship Company.” The complaint also avers that the directors of The New York and Virginia Steamship Company, “ though requested so to do, have refused to take action or proceedings to recover back the said steamships from said defendant, The Old Dominion Steamship Company.”

The plaintiffs, in behalf of- themselves and of all others interested with them, who shall come in and seek relief by this action, ask several different kinds of relief; amohg which is a prayer that the alleged fraudulent sale of the steamships to The Old Dominion Steamship Company may be set aside, and the property restored.

The defendants separately demur, but their grounds are the same, though presenting somewhat different questions, and are: first, that the complaint does not state facts sufficieñt to constitute a cause of action against each defendant demurring; second, that the plaintiffs, as stockholders in The New York and Virginia Steamship Company, have no right to maintain the action ; and third, the several causes of action have been improperly united in the complaint; that is to say, several causes of action stated in the complaint, are not common to all the defendants, but could only be maintained against some separately.

In the discussion of these demurrers, it must of course be assumed that the allegations of the complaint are true; and the questions presented are:

First, can a stockholder in a corporation, in behalf of himself and other stockholders similiarly situated, maintain an action against such corporation and its directors, to set aside and enjoin transactions done by such directors, in the name of the corporation, for their own personal gain and benefit, and in fraud of the rights of the plaintiffs and other bona fide stockholders, when the directors have been requested to bring such action and refused ?

"It would seem that a bare statement of the proposition ought, of itself, to be sufficient. It would be monstrous to hold that a stockholder had no standing in court to protect his property in a corporation, which, fraudulent managers, for their own gain, were misapplying. Such a rule would place every stockholder in a corporate body completely at the mercy, and in the power, of fraudulent trustees and directors. If the cases were not numerous where stockholders have been allowed to maintain bills in equity for frauds committed by directors, as Judge Fancher truly said they were, . we would now at least make a precedent for the maintenance of such an action, believing that sound public policy and the honest and discreet management of corporations require it.

The right of the present plaintiffs to bring an action in behalf of themselves and others, is recognized by section 119 of the Code, where it is, among other things,, provided: When the parties are very numerous and it may be impracticable to bring them before the court, one or more may sue or defend for the benefit of the whole.”

Angelí & Ames, in their work on Corporations, thus state the rule: The general rule is, that a suit, brought for the purpose of compelling the ministerial officers of a private corporation to account for breach of official duty, or misapplication of corporate funds, should be brought in the name of the corporation, and cannot be brought in the name of the stockholders, or some of them. * * * But as a court of equity never permits a wrong to go unredressed merely for the sake of form, if it appear that the directors of a corporation refuse in such case to prosecute, by collusion with those who had made themselves answerable by their negligence or fraud, or if the corporation is still under the control of those who must be the defendants in the suit, the stockholders, who are the real parties in interest, will be permitted to file a bill in their own names, making the corporation a party defendant. And if the stockholders are so numerous as to render it impossible, or very inconvenient, to bring them all before the court, a part may file a bill in behalf óf themselves and all others standing in the same situation. The jurisdiction of chancery in such cases, proceeds'in cases of joint-stock corporations, upon the same principles as are applied to charitable corporations in England. The directors are the trustees or managing partners, and the stockholders are the eestuis que trust and have a joint interest in all the property and effects of the corporation; and no injury that the stockholders may sustain by a fraudulent breach of trust can, upon the general principles of equity, be suffered to pass without a remedy.”

In Grant on Corporations, it is declared: A corporator may not only sue singly in equity the directors, etc., dr the company, on behalf of himself and other shareholders, etc., but he may also join other parties as defendants, who may be receiving benefits from, the transactions which he impeaches.”

This doctrine contained in the elementary works, has been repeatedly recognized in the courts. Koehler v. The Black River Falls Iron Company was an action brought to foreclose a mortgage giveu by the defendant. William M. Hally, a stockholder, on petition showing that the directors did not intend to make defense, was allowed to appear and defend. The bill was dismissed, and the complainants appealed. The Supreme Court of the United States affirmed the decree, Mr. Justice Davis writing the opinion, who cites the before quoted paragraph from Angel! & Ames on Corporations, approvingly, for the purpose of showing that a stockholder has a standing in court, to maintain or defend a suit which involves illegal or fraudulent .acts of the directors of a joint-stock corporation.

In Zabriskie v. The Cleveland, Columbus and Cincinnati Railroad Company and others, the Supreme Court of the United States affirmed the same doctrine. Mr. Justice Campbell says:

The frame of the bill implies that this contract exceeds the powers of the corporation, and cannot be confirmed against a dissenting stockholder. His authority to file such a bill is supported upon this ground alone. The usual and more approved form of such a suit being that of one or more stockholders to sue in behalf of the others.”

There are also many other cases which hold the same principle. Among these are Robinson v. Smith, Cunningham v. Pell, Peabody v. Flint, Blatchford v. The New York and New Haven Railroad Company, Cross v. Sackett, Butterworth v. Fox.

The cases referred to, abundantly establish that if the allegations of this complaint are true, there is a cause of action stated against The New York and Virginia Steamship Company and its directors. Upon their part, the appeal was argued as if it was necessary that the complaint should justify all the relief prayed for, whereas it is sufficient if it states a cause of action, the demurrer assuming that none is averred. No opinion is expressed upon the extent of the relief which can be granted in this action. It seems very clear,. however, if the truth of the allegations contained in the complaint be established, that the plaintiff will be entitled to the relief, at least, of setting aside the alleged fraudulent, transfer of the corporate property. This would be justified, if the proofs supported the averments.

Second. Can the action be sustained against The Old Dominion Steamship Company, upon the allegations of the complaint ?

It is claimed in behalf of this defendant, that the present suit cannot be maintained, because the pleading states that that corporation has'parted with its property for the vessels purchased of The New York and Virginia Steamship Company, and without restoring to it its property, the sale and purchase cannot be set aside.

It is undoubtedly .a general rule, that he who seeks to repudiate a contract with another upon the ground of fraud, must restore (& that which he has received. How this doctrine, however, can be made applicable in favor of this defendant, is not perceived. The complaint charges that The Old Dominion Steamship Company is co-conspirator with the other defendants to defraud the plaintiffs and those whom they represent, for its own benefit and that of its officers, as well as for the gain of the other defendants. Why should the plaintiffs be compelled to restore to it property which they do not control, and which such defendant, for the purpose of defrauding them, placed in other hands % The victims of a conspiracy (and such the plaintiffs are, according to the complaint, which the demurrer admits) surely ought not to be called upon to make good to one of the conspirators that which has been parted with for the express and only purpose of working a wrong to such victims.

He who has been engaged in an attempt to defraud another, should be left to relieve himself as best he can; and as this corporation must, on this appeal, be regarded as occupying just that position, it will be left to establish its case by proof. When the cause is tried, and its exact status as to the transactions ascertained, a decree protecting its rights, if it has any worthy of being protected, can be made. Its demurrer is.of no force, if the history of the dealings between the defendants, and the objects thereof, as stated in-the pleading demurred to, be true.

The authorities referred to above, establish that The Old Dominion Steamship Company, as one receiving benefits of the transactions which are impeached, is a proper party to the action. Occupying the position- it does, that of an active participant in a fraud upon the plaintiffs and their associates, the argument based upon the doctrine of principal and agent, does not apply.

' It is true that a principal who adopts a fraud of an agent, by taking its fruits, has no standing to maintain an action to set aside the fraudulent act; but surely, when the party implicated has aided the agent in committing a fraud upon a principal, and was, in fact, a party to it, he cannot make this point when the fruits of the transaction have not come into the principal’s hands. The complaint shows that the stock of The Old Dominion Steamship Company, received in payment of the vessels, have not come into the treasury of the other corporation, and consequently the plaintiffs, as stockholders of the latter, have not been benefited. The plaintiffs and their associates have none of the property of this defendant, or the proceeds thereof, in their hands'; and if the complaint is true, and The Old Dominion Steamship Company is a loser by reason of its fraudulent attempt to entail a loss lipón others for its own advantage, it will endure only that which it deserves to suffer.

Third. The demurrer of Heineken & Palmore having been sustained at Special Term, upon the ground that the facts stated in the complaint against them, do not constitute a cause of action with which the other defendants are concerned in this action,” causes of action, common to all the defendants, are alone left in the complaint.

The various orders overruling the demurrers, should be affirmed, with costs.

Daniels and Beady, JJ., concurred.

Orders affirmed, with costs.

       Section 312.

         Page 290, Law Library (4th series), vol. 55 page 301.

       2 Black., 715.

         Page 721.

       23 How., 381.

       Page 395.

       Dodge v. Walsey, 18 How., 331; Mott v. Penn. R. R. Co., 30 Penn., 1; Manderson v. Commercial Bank, 28 id., 379.

       Bemon v. Rufford, 1 Simon [N. S.], 350; Winch v. Birkenhead H. Railway Co,, 5 De G. & S., 562; Moseley v. Alston, 1 Phil., 790; Wood v. Draper, 24 Barb.

         3 Paige, 222.

       5 Paige, 607.

       6 Allen, 52.

       5 Abbott, 276.

       2 Bosworth, 617.

       15 How. Pr., 545.

       Grant on Corporations, page 290; Peabody v. Flint, 6 Allen, 52.


text:
    JEDEDIAH H. LATHROP and others, Respondents, v. MOSES H. BRAMHALL and others, Appellants.

      Evidence, admissible against any one defendant — reservation of decision on admission of— dedart'ations — against whom admissible.

    If evidence offered is admissible for any purpose or against any one ot several defendants, the referee is not bound to declare its effect.
    The reservation of the decision upon the admissibility of evidence when objection is taken, finds no favor at the hands of the appellate tribunals. The party objecting has a right to a decision at onqe upon such objections.
    The general rule that a declaration is only good as against the person making it, is subject to various limitations; and a statement made by a person in the presence of his associates and acquiesced in by them, is admissible against them.
    Appeal from a judgment for plaintiff, entered on a referee’s report. The action was brought to recover the balance remaining unpaid of the price "agreed upon for the transfer of certain stock, and the dispute was whether the sale was made to them jointly or with defendant Bramhall alone.

      J. L. Cadwallader, for the appellants.

      C. F. Southmayd, for the respondents.
   Opinion by Beady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed as to the defendant Delafield, and affirmed as to the other defendants.


text:
    GEORGE H. THOMPSON, Appellant, v. A. F. LEASTEDT, HENRY STEVENS and JOHN STEVENS, Respondents.

      Will — declaration of testator on execution of— how jyrwen.

    The statute does not necessarily contemplate that a testatrix should declare, “ in words,” an instrument to be her will. It is enough that the decedent makes known to the witnesses by acts and words that it is regarded and accepted as her will, and that the witnesses subscribed it as such at her request

    This may be established as matter of fact by one of the witnesses, even when the other has forgotten what transpired,

    'Appeal from a decree of the surrogate of the county of New York, refusing probate to an instrument propounded as the last will of Eliza Leastedt, deceased.

      Augustus V. Wyek, for the appellant.

      Fra/nkUn Bartlett, for the respondents.

       Remsen v. Brinckerhoff, 26 Wend., 825; Gilbert v. Knox, 52 N. Y., 125; Matter of Will of John Kellum, id., 517.

       Trustees of Auburn Seminary v. Calhoun, 25 N. Y., 422.

   Opinion by Daniels, J.

Davis, P. J., and Beady, J., concurred.

Decree reversed, and proceedings remitted to Surrogate’s Court, with direction to admit the will to probate.


text:
    JOHN S. McLEAN, Executor, etc., Respondent, v. WILLIAM T. McLEAN, Appellant, and others.

      WiU—action f or construction of—what questions pertinent in—, matters left to discretion of executor.

    In an action brought to obtain a construction of a will by which one-fourth of the residue of the testator’s estate was devised and bequeathed to his executor in trust for the life of one of the defendants in the action, with power to the executor to convey such portion to defendant at any time when the executor should be satisfied that he would make a prudent and proper use of it; held, that that portion of an answer asking an adjudication that the executor was satisfied that the defendant would make a prudent and proper use of such part of the estate, was properly stricken out. It was a matter discretionary with the executor, and formed no part of the controversy which the action sought a settlement of.
    Appeal from an order striking out a portion of the answer of the defendant William T. McLean.

      F. <& F. Tillou, for the appellant.

      Alfred W. Lowerre, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Beady, J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


text:
    EDMUND COFFIN, Appellant, v. RICHARD COKE, Governor of the State of Texas, THE STATE OF TEXAS and others, Respondents.

      Agent—compensation of— action for against a State. ■

    Appeal from an order denying a motion for an injunction and receiver, in an action brought to recover compensation for services alleged to have been rendered by the plaintiff as agent, and to have the amount due him determined and paid to him. The plaintiff was employed to negotiate the sale of certain Texas State bonds, under an agreement by which his compensation for all services and expenses was to be a percentage not to exceed two per cent of the proceeds of the bonds sold, and that the State of Texas should in no event be responsible for more than two per cent of the proceeds of the bonds sold. He never sold any bonds, and the agency was, before the commencement of this action, taken out of his hands. The court was of opinion that the plaintiff was concluded by the agreement, and could only recover in case of a sale by him. The court did not consider the question of its jurisdiction of an action brought against the State of Texas.

      Edmund Coffin-, Jr., for the appellant.

      Rastus It. Ransom, for the respondents.
   Opinion by Daniels, J.

Dates, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


text:
    CLINTON H. BLAKE and another, Respondents, v. SIEGEL BERNHARD, Appellant.

      Attachment—when fraudulent design sufficiently shown.

    This was an appeal from an order denying a motion to set aside an attachment granted on the affidavit of the plaintiff, averring that he had been informed and believed that the defendant contracted the debt fraudulently; that the defendant was then engaged in putting all his property out of his hands; and that defendant proposed to refuse payment of his obligations, and defraud his creditors, in pursuance of a plan determined upon before the purchase of the goods sold him by the plaintiff. It also alleged that the plaintiff’s father informed deponent that he had called on defendant and charged him with the facts stated, and defendant did not deny their truth, but promised to call and see deponent in relation to an immediate payment of his claim. The affidavit was corroborated by that of the plaintiff’s father. Held, that sufficient grounds for the issuing of an attachment had been shown, and that the omission by the defendant to deny the charges of plaintiff’s father, and his promise to call and pay the claim, were an acknowledgment of their truth, and made out a prima facie case of fraudulent design.

      Adolph L. Sanger, for the appellant.

      George, S. Sedgwick, for the respondents.
   Opinion by Brady, J.

Daniels, J., concurred.

Order affirmed, with ten dollars costs, besides disbui'sements.


text:
    DANIEL RICHTER, Respondent, v. MARX WISE, Appellant.

      Attachment — Affidavit must show the facts constituting the cause of action.

    Appeal from an order denying a motion to discharge an attachment. The plaintiff’s affidavit stated that he had a just cause of. action against the defendant, for the amount named in the summons, but did not state the facts constituting the cause of action. The court was of opinion that it was not sufficient to state the amount of the claim, and the legal conclusion that the plaintiff had a cause of action, but that the subject-matter of the-claim should be set forth.

      JBwrzmcm & Yeaman, for the appellant.

      Bushnell <& Albright, for the respondent.

      2 Wait’s Pr., 146; Zeregal v. Benoist, 33 How. Pr., 129; Code, §§ 229, 227.

   Opinion by Beady, J.

Davis, P. J., and Daniels, J., concurred. , •

' Order reversed, with ten dollars costs, besides disbursements; and an order directed, setting aside the attachment, with ten dollars costs.


text:
    JAMES A. PATTERSON, Appellant, v. ALFRED BAKER, Respondent.

      Complaint — demwrer to.

    Appeal, from an order sustaining a demurrer to plaintiff’s complaint. The action was brought by the plaintiff as owner of the circulating bills of the Mechanics’ Bank, incorporated and existing in the State of Georgia, to recover damages for the wrongful use of its property by the defendant and other directors of the bank. The bills are alleged in the complaint to have been acquired by plaintiff, at various times since January, 1860, and the acts complained of are stated to have been performed at various times since January 1, 1861. The court was of opinion that the complaint should have alleged that the hills were received before January 1, 1861, which it did not, and that without that averment the complaint did not state facts sufficient to constitute a cause of action.

      J. S. Winter, for the appellant.

      Win. G. Choate and Wm. M. Emrts, for the respondent.

       Butt v. Cameron, 53 Barb., 642.

   Opinion by Daniels, J.

Davis, P. J., and Beady, J., concurred.

Order affirmed, with costs.


text:
    CHARLES F. CONNOLLY, Respondent, v. HENRY F. HAMILL, Appellant.

      Contract—construction of, province of cowrt and not of jury.

    This action was brought to recover for certain iron which the plaintiff alleged he had sold and shipped to the defendant at New York, in conformity with an agreement entered into betvreen them. The defendant claimed that as there had been an unreasonable delay in the delivery of the iron, he was not bound to receive it. That the construction of the contract was for the jury, and that the court erred in taking it from them. The court, after a review of the evidence, was of opinion that it was for the court, and not the jury, to construe the written contract, and also to pass upon the effect of the other evidence in the case.

      John E. Burrill, for the appellant.

      Scudder & Candor, for the respondent.
   Opinion by Westbbook, J.

Daniels, J., concurred.

Judgment affirmed.


text:
    DANIEL F. RUTHERFORD, Appellant, v. REBECCA WHITE, Respondent.
    Appeal from an order granting a new trial.
    The action was brought to recover for a horse and harness and other articles sold as alleged in the complaint to the defendant. The court, after a review of the evidence, was of opinion that there was sufficient evidence to justify the verdict of the jury, and reversed the order granting a new trial, with costs.

      F. H. Angler, for the appellant.
    Chapman, Scott <& Crowell, for the respondent.
   Opinion by Beady, J.

Davis, P. J., and Daniels, J., concurred.

Order reversed, and new trial denied, with costs.


author: Learned, P. J.:

text:
    JAY GOULD, Respondent, v. THE TOWN OF ONEONTA, Appellant.

      Stock — agreement for sale of, by town —payment of money by purchaser to discharge lien on — right of recovery upon rescission of contract —■ When town bound by acts of its officers — illegal contract.

    The commissioners of the defendant having, in its behalf, subscribed for certain stock in the A. & S. R. R. Co., a dispute arose as to .the amount due; the company claiming a balance of some §6,000 for back interest, and refusing to issue the scrip until such amount should be paid. Subsequently, the commissioners agreed to sell the stock to one Wilbur, the plaintiff’s assignor; nnd, to enable him to procure a transfer of the same upon the books of the company, authorized him to pay the amount claimed by it to be due. which amount was accordingly paid by him. At the time of entering into the contract, Wilbur gave the commissioners a bond for §500, and bis check for the balance, upon the agreement that the check was not to be presented until the stock had been transferred on the hooks of the company.
    Subsequently, an action was commenced by the defendant, and an injunction obtained preventing the transfer of the stock to Wilbur, who thereupon rescinded the contract, and brought this action against the town of Oneonta to recover the amount paid by him to the company, and the value of the bond. Held (1), that Wilbur, in paying the money to the company, acted' as the agent of the commissioners, and that the transaction was substantially the same as though he had paid the money to them and they had paid it to the company, and that as the defendant had had the benefit cf the payment, it was liable therefor to Wilbur; (2), that even if the commissioners had no authority to make the contract, as it was not for cask, still, as it was not immoral, opposed to public policy, or criminal, tke plaintiff was entitled to recover what had keen paid under it.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.

      H. Sturges, and Bundy dk Scramlimg, for the appellant.
    ' This sale or attempted sale of the stock by the commissioners, was a clear violation of the statute, in two particulars: it was not a sale at par, or for cash. (Session Laws, 1857, vol. 1, p. 813, § 6.) A check of a responsible drawer, who has funds to meet it, is not of itself payment until it is in fact paid. (Turner and others v. Bank of Fox Lake, 23 How., 399; affirmed in Court of Appeals, 3 Keyes, 425; 1 Cow., 359; 4 N. Y., 312; Bradford v. Fox, 16 Abb., 51, 53; S. C., 39 Barb., 203; 42 N. Y., 538, 541, 542; 6 Rob., 157; 21 Wend., 211, 215, 218, 219.) These railroad commissioners are required to sell for “ cash; ” they cannot, therefore, sell on time, and any securities taken by them must be void. (Decker v. Jackson, 16 N. Y., 442; Morton v. Campbell, 14 Abb., 414, and cases cited; S. C., 37 Barb., 179; Webb v. Albertson, 4 id., 51.) This case is not like that of Clarke v. The City of Rochester (28 N. Y., 605). “ A special authority must be strictly pursued, and every purchaser is presumed to know that special authority, wThere it is contained in a public statute." (Dunning v. Smith. 3 John. Chy., 332; Delafield v. State of Illinois, 8 Paige, 527; S. C., 26 Wend., 192; 2 Hill, 159; Farmers and Mechanics’ Bank v. Butchers and Drovers' Bank, 16 N. Y., 137.) Officers of a corporation are special, and not general agents, and have no authority to bind the corporation, except within the limits prescribed by the charter and by-laws. (Adriance v. Roome, 52 Barb., 399.) “ The principal is not bound by the’ special acts of an agent beyond his authority.” (Munn v. Commission Co., 15 John., 44; Beals v. Allen, 18 id., 363; Scott v. McGrath, 7 Barb., 53; Stringham v. St. Nicholas Ins. Co., 3 Keyes, 280; People v. Bostwick, 32 N. Y., 445; Marvin v. Wilber, 52 id., 270.) It is clear, from the foregoing authorities, that this sale, or attempted sale, was void and not binding on the defendant. (Arnot v. Pitston Coal Co., 9 Sup. Court R. [2 Hun], 591, 594-596; Saratoga Co. Bank v. King, 44 N. Y., 87.) We claim the rule to he, that this contract being illegal and void, the money paid on it cannot be recovered back. (Burt v. Place, 6 Cow., 431; Merryweather v. Nipan, 2 Smith’s Leading Cases, 528; Best v. Strong, 2 Wend., 319; Perkins v. Lange, 15 Wend., 412; Nellis v. Clark, 20 Wend., 24; S. C., 4 Hill, 24; Mayor, etc., v. Erben, 38 N. Y., 305; Otis v. Harrison, 36 Barb., 210.) It is like the case of officiously and without authority or request paying the debt of another, in which case it is well settled that the payment affords no' cause of action, and cannot be recovered back (Jones v. Wilson, 3 John., 434; Menderback v. Hopkins, 8 id., 436; Wyman v. Farnsworth, 3 Barb., 369; 14 N. Y., 181; Fowler v. Scully, 72 Pa., 466, 467, 468.) Wilbur could recover this money back of the railroad company, under the case of Merritt v. Millard (4 Keyes, 208), but not of the defendant. (Melchoir v. McCarty, 11 Am. R., 606.) No interest was due from the town to the railroad company. That this subscription does not of itself draw Interest is very clear. (Southern Central R. R. Co. v. Town of Moravia, 61 Barb., 180, 186-188; Session Laws, 1857, vol. 1, p. 810; Starin v. The Town of Genoa, 23 N. Y., 439, 453-455, 458, 459; Town of Venice v. Breed, 1 N. Y. S. C. R., 130.) This company had no control or authority over the question of. interest whatever. The law, and not any resolution of the company, governs the question of interest. And the statute does not give interest on the refusal of an “ individual subscriber ” to pay in compliance with a call of the company. Its only effect is to forfeit the stock and all previous payments. (3 Statutes at Large, 619, § 7; Lake Ontario R. R. Co. v. Mason, 16 N. Y., 451, 464.) Interest cannot be recovered without an agreement to that effect. (Tyler on Usury, 78; 3 Parsons on Contracts, 104; Colton v. Bragg, 15 East, 223.) If the court found that this interest was due, then we insist it is wholly unsupported by the evidence, and the judgment should, for that reason, be reversed. That this court has such power, is now unquestioned law, and it is frequently exercised. (Macy v. Wheeler, 30 N. Y., 231; Smith v. The Etna Life Ins. Co., 49 id., 211; Barlow v. Hubbell, 1 N. Y. Sup. C. R., 225.) “ If a finding upon the facts will not sustain the conclusions of law, the judgment must be reversed.” (Nelson v. Ingersoll, 27 How., 1-4; Buckingham v. Payne, 36 Barb., 87; Smith v. Etna Ins. Co., 5 Bans., 552.) “ After the payment of the principal of a debt, an action will not lie to recover for interest merely.” (Stevens v. Baringer, 13 Wend., 639; Facett v. Emmett, 11 Paige, 142; Southern Central R. R. Co. v. The Town of Moravia, 61 Barb., 180.)

      Chapman & Martin, for the respondent.
    The commissioners had power to make the contract with Wilbur. They had power to sell the town bonds for cash. A check in -the mercantile world is always treated as cash. The law used the word “cash” in the ordinary mercantile sense, as opposed to time sales or exchange sales. It was not a sale, but an agreement to sell for cash. Power to sell for cash implies power to make an agreement to sell for cash. But whether the commissioners had power to make such contract or not, if they did make it, claiming to act for the town, and Wilbur parted with his money upon the strength of it, he would have been entitled to recover. In making it at best for defendant, they simply exceeded their power. Their making of that contract was not even an act malum prohibii/um, much less m,al/wm in se. It was an act not expressly authorized. Wilbur’s paying to the railroad company, at their request, is precisely the same as if he had handed the money to these commissioners as agents for the town, and they as such agents had used it for the town. If, before they paid it over to the town, Wilber had sued to recover it back, the contract being executory, and not yet executed, he could have . recovered. (7 Mass., 31; 22 Pick., 181.) The town did, subsequently, ratify their acts. The commissioners had power to agree with the company as to the validity of its claim for back interest, and to adjust it. Such power would be implied from their relation to the company' as indicated by the act. They had a general power “to carry into effect the purposes of this act.” (Laws 1856, § 1, ch. 64.)
   Learned, P. J.:

The important facts are briefly these. The commissioners of the . defendants had subscribed for certain stock of the Albany & Susquehanna Railroad Company for the town. This subscription they had paid up, except that the company claimed that there was a balance of some $6,000 due for back interest. About this there was a dispute between the commissioners and the company; and the company refused to issue scrip until this was paid. While matters were in this condition, the commissioners contracted to sell the stock held by the town to Wilbur, the assignor of the plaintiff, at par. As part of this agreement, and in order to obtain the issue of the stock, Wilbur, by the direction of the commissioners, paid to the railroad company the amount of the disputed back interest; and he also paid to the commissioners themselves a town bond of $500. In making this payment to the' railroad, Wilbur, by direction of the commissioners, did so under protest; and the receipt given him so expresses. After this, the defendants brought an action, and by injunction prevented a transfer of the stock to Wilbur. Wilbur then rescinded his contract, and demanded back what he had paid. The commissioners subsequently obtained the scrip for this stock, and sold it. The plaintiff, assignee of Wilbur, now seeks to recover the money thus paid, and the value of the bond. Judgment was rendered in his favor at Special Term, from which defendants appeal.

The commissioners were the agents of the defendants in respect to the subscription for this stock, and in respect to its sale. As such, they contracted for the sale, and fixed the price. When they required, or authorized, Wilbur to pay to the railroad company this money, as a part of the purchase-price, and lie so paid it, the transaction was substantially the same as if he had paid it to the commissioners, and they had paid it to the company. If they were authorized to sell and receive payment, then their direction to the purchaser to pay to some one else, when acted on, was a payment to them. The price at which they agreed to sell, included this balance of alleged back interest; and Wilbur paid this as a part of the purchase-price. Or the claim of the company may be considered to be a lien alleged to exist upon the stock, without the payment of which the company refused to issue it. The commissioners, protesting against their liability, yet authorize Wilbur to discharge this alleged lien, in order that, by so doing, they may transfer the stock to him, and receive payment for it. In this view of the matter, also, the money was practically a payment on the contract for the sale of the stock. The contract has been rescinded, and it is unreasonable that Wilbur should lose his part payment.

Again, the defendants have had the benefit of the payment. They have had the stock and sold it. They say now : — true, we have had the stock, but we ought to have had it without the payment of this back interest. But the answer to this is, that their agents authorized the payment of this back interest. If it was, as appears, paid under protest, that was a protest on the part of the commissioners, and on behalf of the defendants, against their liability. Let the defendants then recover the money from the railroad company, to which they caused it to be paid. Let them claim that, in order to obtain this stock, they were compelled to pay this back interest, and let them show that they were not justly liable therefor. For the evidence shows that the railroad company refused to issue the stock until this back interest had been paid.

In opposition to this view, it is urged by the defendants that the commissioners had no right to make the contract which they did make; for the reason that, as alleged, it was not for cash. Assuming even that the contract was not for cash, still, as is well pointed out by the learned justice who tried the cause, “ the contract was not immoral, opposed to public policy, or criminal. It was simply the exercise of an excess of power by officers who were restrained by the law.” This ease has therefore no similarity to those in which the courts refuse relief to any parties who have entered into an immoral contract,

The question is further made, whether the commissioners had authority to settle and adjust the back interest with the railroad company. The claim made by the company was, that the subscription had not been fully paid, on account of a loss of interest upon the bonds delivered in payment of the subscription. The company claimed that the subscription should be as of certain date, and should bear interest as of that date. Whatever the justice or injustice of that claim might have been, it seems plain that an adjustment of it was within the authority of the commissioners. At least it was so far within their authority, that Wilbur would be justified in paying money on this claim, by their direction.

They were, in fact, the only persons who could adjust the balance alleged to be due to the railroad company. And it seems to have been within the duties imposed on them, to arrange the matter of interest with the company. And whether, in the present instance, they did actually agree on the balance as due, or only paid it under protest in order to obtain the scrip, in either case the payment which they authorized Wilbur-to make, was a part payment on this contract; was made by their direction, and for the benefit of the defendants. When the defendants broke the contract,' and Wilbur rescinded it, they ought not to have retained the money of which they had thus had the benefit.

The judgment should be affirmed, with costs.

• Present — Learned, P. J., James and Potter, JJ.

Judgment affirmed, with costs.

       Merritt v. Millard, 4 Keyes, 208.

       Tracy v. Talmage, 14 N. Y., 162.

       Laws 1856, chap. 64.


author: Lbabnbd, P. J.:

text:
    THE TOWN OF DELHI, Respondent, v. JAMES H. GRAHAM, Appellant.

      Attorney — una/aihoriaed appem'a/nee of—When plaintiff’s proceedings stayed, on application of defendant.

    Plaintiff’s proceedings will not be stayed, on the application of the defendant, on the ground that the attorney had no authority to bring the action, except in cases in which there is an actual fraud on the court — where an attorney, without the knowledge or consent of the plaintiff, is using his name in a wrongful manner.
    Where an action is brought in the name of a town, and it appears that the pend-ency of the action was known to the inhabitants of the town, and had been reported to the town at a town meeting, without opposition or objection by any one, the plaintiff’s proceedings will not be stayed on the ground that the attorney had no authority to bring the action.
    Appeal from an order made at Special Term, suspending proceedings on the part of the plaintiff, on the ground that its attorney was not authorized to bring the action.

      Mr. F. Jacobs, Jr., for the appellant.

      Mr. Miles, for the respondent.
   Lbabnbd, P. J.:

The defendant moves to stay the plaintiff’s proceedings, on the ground that the attorney is not authorized to bring the action. The instances in which such relief is proper, are rare. They should probably be limited to those in which there is an actual fraud on the court; in which an attorney, without the knowledge or consent of a plaintiff, is using his name in a wrongful manner. Generally it is best that only the plaintiff himself should be allowed to complain that the action is without his authority, and that his silence on this point should be considered to give consent. There is an obvious reason why such a motion as this should be seldom granted. The plaintiff has no notice of it. For the very ground of the motion is, that the attorney for the plaintiff does not, in fact, lawfully represent him. And therefore, if the defendant’s view of the facts is correct, the notice of motion given to the plaintiff’s attorney, is no notice to the plaintiff. We are asked, therefore, to prevent a plaintiff from proceeding in an action, and.to do this without giving him or any one who represents him an opportunity, to be heard. The court would probably never do this in the case of a natural person plaintiff. But the defendant urges that the present is different from other cases, in that the plaintiff is a quasi municipal corporation. These facts however appear :■ The pendency of this action is known to the inhabitants of the town. It has been reported to the town at a town meeting, and no opposition or objection made. It cannot then be said that there is a fraudulent use of the name of the town. And it seems reasonable to suppose, that, if this action is conducted without the approbation of the town, the defendant or some other person would call a town meeting to direct its discontinuance. That would be a better remedy than this application. The defendant, however, insists that the authority to bring an action, can only be- given at an annual town meeting, or at a meeting specially called; and that an action commenced without such authority, cannot afterward be ratified. It is not best to decide that question of law, on an application which is addressed to our discretion. If the fact that this action was commenced without such authority, is a legal defense, then the defendant should have pleaded it (as in fact he did), and the matter should be tried at the circuit. If the fact is not a legal defense, but is only available on such a motion as this, then, in exercising our discretion, we should consider that the town has actual notice of this action and has not repudiated it.

We ought not to interfere, without its request, to protect it from the acts of an attorney whom it is implicitly recognizing. If the motion is for its protection, let it make it. If it is for the defendant’s benefit, let him make this defense, if it be a defense, at the trial.

There has been delay in moving. The cause was at issue and noticed for trial when proceedings were stayed for the purpose of making this motion. Yet the defendant had knowledge of the facts long before.

The order appealed from should be reversed, without costs.

Order reversed, without costs.

Present ■—• Learned, P. J., Boardman and James, JJ.


text:
    IRA BELL, Appellant, v. THE LYCOMING INSURANCE COMPANY, Respondent.

      Bemovcd of causes to United States Oourrts—petition for—5y whom, many he signed.

    A petition, filed by a corporation, for the removal of a cause to the United States Court, signed by its general agent in this State; and accompanied by an affidavit showing affirmatively his authority to act for the corporation, is sufficient.
    Appeal from an order made at Special Term, removing this cause from the Supreme Court to the Circuit Court of the United States, under the act of congress of 1789.

      Mr. Magone, for the appellant.

      Richardson c& Adams, for the respondent.
   Learned, P. J.:

The amount of the surety to be taken, is a matter in the discretion of the court to which the petition is presented. It could never be reviewed here, unless, perhaps, in some extraordinary case. In the present instance, the surety was a little less than the claim. As a general rule, it would seem just that it should equal the claim and accrued costs.

The petition was signed by the general agent of the company in this State; and it is objected that this is insufficient to constitute a petition by the defendant. If we look at the judicial act of the United States of 1789, we shall see that it was drawn with reference to those modes of practice, in which every step in a cause is taken in open court. The appearance, the filing of the petition, the offering of surety, and the acceptance by the court, are to be simultaneous. And, as this last act is one which requires the personal act of the judge, it is plain that all these acts were, in the minds of the framers of the law, to be done in term time. Our practice has rendered a modification necessary. The law is silent as to the manner of executing the petition. It does not, in terms, require a signature or a verification.

The object of the petition seems to be, to show that the defendant, at the first moment when he is authorized to take any step — that is, at the very time of appearance —■ claims the right to remove his cause. Now, upon the appearance of a defendant by an attorney, the attorney is authorized to represent the defendant. And where such an attorney files a petition in the name of the defendant, and presents it to the court, signed by one who is the general agent of the defendant, with an affidavit attached, showing affirmatively the authority of" that agent, it would be unreasonable to hold, as matter of law, that such a paper was not the petition of the defendant. Of course there might be eases of fraud or falsity; but nothing of that kind is pretended here. There is no suspicion that the petition was not filed and presented by the authority of the defendant. It was filed by its attorney in the case, as a part of his proceedings therein. And though it may be better in cases of this kind, that the petition should be executed by the principal officers of -the company, yet, after all, they are only agents of a higher position. In Vandevoort v. Palmer, the petition was signed only by the attorney in the action, and it was held to be sufficient.

However objectionable to plaintiffs this right of removal may be, still it is the law. I do not think that the State courts should try to defeat it by technicalities, where, in a proper ease and in due season, the defendant has insisted on his right.

The order appealed from should be affirmed, with ten dollars costs.

Present — Learned, P. J., and Boardman, J.

Order affirmed, with ten dollars costs.

       4 Duer, 677.


text:
    EDWIN GROAT, Respondent, v. LUKE PHILLIPS, Appellant.

      Covenant by husband and wife—when wife not bound by.

    This action was brought on a covenant of seizin contained in a deed executed by both husband and wife, the covenant being in favor of both. The action was brought against the husband alone, the complaint alleging that the wife-joined only to release her dower. The defendant demurred, on the ground that his wife should have been made a party to the action. ’ Held, that the demurrer was properly overruled. The covenant did not bind the wife, as the property was not her separate estate; any presumption that it was such, being rebutted by the allegatious of the complaint.
    Appeal from an order overruling a demurrer.

      JR. JB. JFish, for the appellant.

      Z. 8. Westbrook, for the respondent.
   Opinion by Learned, P. J.

Present — Learned, P. J., Boabdman and James, JJ.

Order affirmed with ten dollars costs, with leave to defendant to answer within twenty days, upon payment of costs of motion below and of this appeal.


text:
    DENNIS HOLMES and another, as Administrators, etc., Appellants, v. LUTHERIA SMITH, EDWIN DIBBLE AND OTHERS, RESPONDENTS.

      Chapter 869, Laws of 1871 — District attorney—when authorized to actas surrogate.

    "When the county judge and surrogate are interested and cannot act as surrogate, and the special county judge is unable to give the bonds required by chapter 218, Laws of 1858, the district attorney of the qpunty is authorized by chapter 859, Laws of 1871, to act as surrogate. The words “ when there is no legal officer authorized to perform,” contained in section 8 of that act, are to be construed as though they read, “ when there is no officer legally authorized to perform.”
    Appeal from an order made by the district attorney of Chenango county, acting as surrogate of said county, denying an application for an order to sell real estate, on the ground that he had no jurisdiction.

      George W. Bay, for the appellants.

      E. H. Prvndle, for the respondents.
   Opinion, by Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

Order reversed, and district attorney directed to proceed in the matter, with costs to the appellant, to be paid out of the estate.


text:
    ELIZA POWELL, Plaintiff, v. JOHN POWELL, Defendant.

      Note — conversion of— what does not constitute.

    This action was brought to recover for the conversion of a note, belonging to the plaintiff, by the defendant, the maker thereof. It appeared upon the trial, that the note was delivered by the plaintiff to her husband, to be surrendered by him to the defendant, who had agreed, in consideration thereof, to sell him a stock of goods at a certain price. After the defendant had received the note, he refused to sell the goods at the price agreed upon, and plaintiff’s husband subsequently purchased them from him, at a greater price. Held (1), that these facts did not constitute a conversion of the note, but simply a breach of contract on the part of the defendant; (3), that the loss was sustained by the husband and, not by the plaintiff, and that she had no cause of action therefor.
    Motion for a new trial, on exceptions ordered to be heard in the first instan'ce at General Term.

      Gilbert & Maynard, for the plaintiff.

      W. Youmcms, Jr., for the defendant.
   Opinion by Learned, P. J.

Present — Learned, P. J:, Boardman and James, JJ.

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


text:
    FIRST NATIONAL BANK OF PLATTSBURGH, Respondent, v. RUFUS HEATON, Appellant.
    Appeals from orders • denying motions for a new trial, on the ground of newly discovered evidence, and on a case and exceptions.
    The General Term were of the opinion that the motions were properly denied, as the evidence was not newly discovered, and as there was no merit in the objections taken to the admission of evidence.

      Scumuel Hand,, for the appellant.

      8. W. Holcomb, for the respondent.
   Opinion by Learned, P. J.

Present —• Learned, P. J., and Boardman, J.

Order affirmed, with ten dollars costs.


text:
    MARTIN D. SCHOONMAKER, Respondent, v. FRANCIS McNally, appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The only question presented by the appeal, was, whether or not the court could say, as a matter of law, that the plaintiff was guilty of contributory negligence, and as the General Term were of the opinion that this could not be done, the judgment was affirmed.
    N. L. Slebbins, for the appellant.

      Ghas. A. Fowler, for the respondent.
   Opinion by Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

Judgment and order affirmed.


text:
    CHARLES EDDY, Respondent, v. ADALINE BAILEY, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon .the report of a referee. The General Term directed certain modifications to be made in the judgment entered below, so as to prevent any. misunderstanding as to its effect.

      Larmtt W. Rhodes, for the appellant.

      EseTc Gowen, for the respondent.
   Opinion Per Guriam.

Present — Learned, P. J., James and Boardman, JJ,

Judgment modified, without costs to either party.