text:
    Charles E. Hart, Resp’t, v. D , L. & W. R. Co., App’lt.
    Sud. Ct. General Term, 1 D.,
    January 18, 1895.

      W. Edwards, for app’lt; John H. Kitchen, for resp’t.
   Van Brunt, P. J.

Although I adhere to the opinion which I have expressed upon the previous appeals in this case (22 N. Y. Supp. 3; 27 N. Y. Supp. 767), that the evidence failed to disclose any negligence upon the part of the defendant justifying a recovery in this action, my associates having differed from me upon this question, this judgment must be affirmed. There does not seem to be any such difference in the presentation of the question of negligence upon this appeal as would call for a different ruling from that which obtained upon the previous appeals. The judgment and order appealed from must therefore be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Herbert E. Hawes, v. Abram V. Whiteman.
    N. Y. C. P. General Term,
    January 7, 1895.
    Appeal from First district court.

      Fernando Solinger, for app’lt; Walter D. Edmunds, for resp’t.
   Per Curiam.

No sufficient reason appears for reversing this judgments The plaintifi testified positively that he had made three coils per minute—the number the contract called for—upon the machine before it was delivered On the other hand, the defendant's witness Washburn testified that he could make only about one per minute. The plaintiff claims he was not a com petent workman, and had not operated the machine long enough to acquire dexterity and speed, which seems reasonable, as it is conceded that only 720 coils were made in all, which would be only about 12 hours’ work at the rate of one coil per minute. This fact also reflects upon the credibility of Wash-burn, who testified that he “worked at it steadily all day for two or three weeks.” Besides, it is undisputed that, owing to Washburn’s inability to sec clearly the progress of the wire in the machine, and to check the revolution at the proper point, an automatic stop was put on, which necessitated a reversal each time a coil was made, ami thereby increased the time required It is to be inferred that this same contrivance was still upon the machine when Lauer made his trial, although there is no direct evidence upon the point, Judgment affirmed, with costs.


author: Ehrlich, C. J.

text:
    Morris Heimerdinger v. Jacob Finelite.
    N. Y. C. C. General Term,
    January 12, 1895.

      Morris Goodhart, for app’lt; Otto Horwitz, for resp’t.
   Ehrlich, C. J.

The defendant, who was sued as indorser of a promissory note, pleaded that at the time of the indorsement he was of unsound mind, and incapable of understanding the nature of bis act, or yielding a free assent thereto. The proofs showed that prior to the indorsement the defendant had met with an accident, but they fell far short of establishing that he was non compos mentis. Indeed, they were so slight that a verdict m favor of the defendant on his plea would have to be set aside as against the evidence , and, in such a case, the consensus of authority is that the trial judge may direct the only verdict the proofs admits of, which, in this instance, was that directed in favor of the plaintiff. There was no error in excluding evidence, and nothing in the case which requires a new trial. The judgment must therefore be affirmed, with costs. Fitzsimons, J., concurs ; Conlon. J., dissents.


author: Conlan, J.

text:
    Ralph Henry v. Joseph Agostini et al.

    N. Y. C. C. General Term,
    December 17, 1894.

      Henry L. Burnett, for app’lt; Stewar&Macklin, for resp’ts.
   Conlan, J.

The specific questions of fact found by the learned judge who tried this case were warranted by the evidence, and his conclusions of law naturally follow. No errors of law were committed on the trial, and the judgment appealed from must be affirmed, with costs.


text:
    William R. Hersberger, Resp’t, v. Rowland L. Barton et al., App’lts.
    Sup. Ct. General Term, 5 D.,
    December 27, 1894.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements.


text:
    Charles M. Hibbard, Resp’t, v. Commercial Alliance Life Ins. Co. of New York, App’lt.
    Supr. Ct. General Term,
    January 7, 1895.

      George Wilcox, for app’lt; Lucius Me Adam, for Resp’t.
   Per Curiam.

From a careful examination of the testimony taken in this case as it appears in the appeal book before us, we are of the opinion that the findings of fact made by the learned referee, upon which the judgment is based, are fully supported by competent and sufficient evidence. We see no reason for disturbing these findings. The exceptions to the admission and exclusion of evidence are without merit. The decision proceeds upon correct rules of law applicable to the case. The judgment appealed from is right, and should be affirmed, with costs to the plaintiff.


text:
    Patrick Hickey, Resp’t, v. Oswego St. Ry. Co. App’lt.
    Sup. Ct. General Term, 4 D.,
    September, 1894.
   No opinion. Judgment and order reversed, and a new trial ordered, with costs to abide the event. Held (1) it was error to receive proof of injury to Cooper, and payment of moneys to him ; (2) to receive proof of discharge of motorman ; (3) it was error to refuse to charge the fifth request.


text:
    Jacob Hirschfield, App’lt, v. Adolph Kalischer, Resp’t.
    Sup. Ct. General Term, 1 D.,
    December 14, 1894.
   No opinion. Motion granted.


text:
    Charles Hoard, Resp’t, v. Abraham Picard, App’lt.
    Sup. Ct., General Term, 4 D.,
    September, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    John Howard, Resp’t, v. John A. Moller, App’lt.
    N. Y. C. C., General Term,
    January 12, 1895.

      Johnston & Johnston, for app’lt; Dennis Spellissy, for resp’t.
   Per Curiam.

Appeal from an order granting leave to amend a complaint "We think the case of Walton v. Mather, 19 Misc. Rep. 316; 31 N. Y. Supp. Ill, is decisive upon the question of terms, and that the order appealed from should be reversed, with costs, and amendment allowed upon payment of all costs to date.


text:
    Philip Jacobs et al. v. Joseph Elias et al.

    Sup. Ct., General Term, 2 IX,
    December 10, 1894.
   Ho opinion. Order affirmed.


text:
    Francis M. Jencks, Resp’t, v. Lizzie T. Saalfield, App’lt.
    Supr. Ct., General Term,
    January 7, 1895.

      Horwitz & Hershfield (E. A. Alexander, of counsel), for app’lt; Clarence L. Westcott, for resp’t.
   Per Curiam.

The order should be affirmed, with $10 costs and disbursements.


text:
    Daniel W. Jones, Resp’t, v. William R. Crum et al., App'lts.
    Sup. Ct., General Term, 5 D,,
    December 27, 1894.
   No opinion. Judgment appealed "from reversed and new trial granted, costs to abide the event


text:
    Carrie M. Kellogg, as Adm’trix, etc., Resp't, v. Industrial Benefit Ass’n, App’lt.
    Sup. Ct., General Term, 4 IX,
    September, 1894.
   No opinion. Judgment and order reversed and a new trial ordered, with costs to abide the event, unless the plaintiff stipulates to reduce the recovery of damages to $111.15, in which event the judgment as so modified is affirmed, without costs of the appeal to either party.


text:
    John J. Kennedy v. D. & H. C. Co.
    Sup. "Ct., General Term, 3 D.,
    December 4, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    William H. Ketchum, Resp’t, v. Eugene E. Lewis, App’lt.
    Sup. Ct., General Term, 5 D.,
    December 27, 1894.
   No opinion Judgment appealed from affirmed, with costs.


text:
    Anthony Klemm, Resp't, v. N. Y. C. & H. R. R. R. Co., App’lt.
    Sup. Ct., General Term, 2 D.,
    December 10, 1894.
    Hearing on reargument.

      Ashbel Green (A. S. Cassedy, of counsel), for app’lt; William D. Dickey, for resp’t.
   Cullen, J

I vote to reverse judgment and order a new trial unless plaintiff consents to reduce verdict to $2,500, in which case it is affirmed,, without costs, on opinion of Dykman, J., on previous argument.


text:
    Frank S. Knight, App’lt, v. N. Y. C & H. R. R R. Co., Resp’t.
    Sup. Ct., General Term, 3 D.,
    December 4, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Harry A. Knowlton, Resp’t, v. Elizabeth Knowlton, App’lt.
    Sup. Ct., General Term. 4 D.,
    September, 1894.
   No opinion. Judgment affirmed, without costs to either party


author: Mayham. P. J

text:
    Hattie Krauss, as Adm’trix, etc., App’lt, v. Wallkill Val. R Co., Resp’t
    Sup. Ct., General Term, 3 D ,
    December 4, 1894.

      William Lounsbery, for app’lt, Ashbel Green (F. L. Westbrook, of counsel), for resp’t.
   Mayham. P. J

I see no material change in the testimony in this case from the evidence as it appeared on the former trial On the appeal taken to this court from the judgment on that trial, the judgment was reversed, and a new trial ordered, on the ground of failure of the plaintiff to establish absence of contributory negligence on the part of the deceased. 23 N. Y. Supp. 432. If we are right in that conclusion, then it was not error for the learned trial judge to nonsuit the plaintiff on this trial. As the only exceptions taken in this case were to the refusal of the trial judge to submit the case to the jury, and to the granting of a nonsuit, the judgment should be affirmed. Judgment affirmed, with costs.


text:
    La Societe Anonyme De L’Union des Papeteries, Resp’t, v. Samuel M. Marks et al., App’lt.
    Sup. Ct., General Term, 1 £>.,
    December 14, 1894.

      Abram Kling, for app’lts; Coudert Bros., for resp’t.
   Per Curiam.

Judgement and order affirmed, with costs, on the opinion delivered on the former appeal, and reported in 21 N. Y. Supp. 706.


author: Brown, J.

text:
    Newbold T. Lawrence v. Town of Hempstead.
    Sup. Ct., General Term, 2 D.,
    December 10, 1894.
   Brown, J.

In this case I concur with the views expressed by Justice Pratt in his opinion written on the former argument. The judgment must therefore be reversed, and there must be a new trial, with costs to abide the event. In this conclusion Justice Pratt concurs.


text:
    In the Matter of Lord’s Estate.
    Sup. Ct., General Term, 1 D.,
    January 18, 1895.
   No opinion. Motion denied.


text:
    Thomas A. Lynch, Resp’t, v. Catharine Love, App’lt.
    N. Y. C. P., General Term,
    January 7, 1895.

      James R. Angel, for app’lt; William F. Browne, for resp’t.
   Per Curiam.

The judgment in favor of the plaintiff is found to be supported by the evidence, and, while the record presents a conflict of testimony, there is no such preponderance in favor of the appellant’s contention as should justify a reversal. The record contains no exceptions to rulings made below. Judgment affirmed, with costs.


text:
    Esther Y. McCarthy, Resp’t, v. Eugene McCarthy et al., App’lts.
    Sup. Ct., General Term, 4 D.,
    July, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


author: McAdam, J.

text:
    John McClave, App’lt, v. John Gibb, Resp’t.
    Supr. Ct.. General Term.
    January 7, 1895.

      Parsons, Shepard, & Ogden, for app’lt; Wm. B. Ellison, for resp’t.
   McAdam, J.

Under the pleadings, as construed by us. on the separate appeal taken from the judgment dismissing the complaint, the matters in respect to which the plaintiff claims to have been surprised were not material, and there was therefore no legal .reason why a new trial should have been granted, and, for that reason, the order denying the motion must be affirmed, with costs.


text:
    Caroline A. McCready v. William Whaley.
    Sup. Ct., General Term, 1 D.,
    December 14, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Delos McCurdy et al., App’lts, v. New York Life Ins. & Trust Co., Resp’t.
    Sup. Ct., General Term, 1 D.,
    December 14, 1894
   No opinion. Judgment affirmed on opinion on previous appeal.


text:
    Mary McGreevey, Resp’t, v. Buffalo Ry. Co., App’lt.
    Buff. Sup. Ct., General Term,
    July, 1894.
   No opinion. Judgment and order appealed from affirmed, with costs.


text:
    John McInerny, App’lt, v. D. & H. C. Co., Resp’t.
    Sup. Ct., General Term, 3 D.,
    December 4, 1894
   No opinion. Judgment affirmed, with costs


text:
    Susan J. McMartin et al., Resp’ts, v. Thomas F. Kennedy et al., App’lts.
    Sup. Ct., General Term, 3 D ,
    December 4, 1894.
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Martha McNulty v. Edward J. Woolsey et al.

    Sup. Ct., General Term, 1 D.,
    January 18, 1895.

      Root & Clarke, for pl’ff; W. W. Culver, for def’ts.
   No opinion. Motion granted, with $10 costs.


text:
    J. W. Macy v. D. Williams et al.

    Sup Ct., General Term. 2 D.,
    December 10, 1894.
   No opinion Order affirmed, with costs


text:
    J W Macy v D. T. Williams et al.

    Sup. Ct., General Term, 2 D.,
    December 10, 1894.
   No opinion Order affirmed, with costs


text:
    Mayor, etc. v. Wintermeyer et al.

    N. Y. C. P., General Term,
    December 3, 1894.

      W. H. Clark, for pl’ff; Hayman & Rosenthal, for def’ts.
   Per Curiam.

The motion should be granted, as the corporation counsel states, in answer to a special inquiry I directed to be made, that he has no papers to submit.


text:
    Morris C. Mengis v. Fifth Ave. Ry. Co.
    Sup. Ct., 1 D.,
    December 14, 1894.
   No opinion. Motion granted on defendant’s giving bond in penalty of $1,000 to indemnify plaintiff against any depreciation of bonds below 90, their present value.


author: Fitzsimons, J.

text:
    Dennis W. Moran, App’lt, v. John Darcy, Resp’t.
    N. Y. C. C.,
    December 17, 1894.

      James Kearney, for app’lt; Max Bayersdorfer, for resp’t.
   Fitzsimons, J.

The order appealed from must be affirmed. The moneys in question must be deemed the personal earnings of the judgment debtor, although, in earning it, he was aided by others. He superintended the work, and performed all the-labor that he could reasonably do, considering his state of health, so that liis aid and services very materially contributed to the earnings of the sum in dispute. The facts and circumstances of this can justify us in this case in determining that the said sum of money is the earnings of defendant for his personal service, and therefore is exempt from levy. Order affirmed, with costs.


text:
    Ichibaro Moriuro et al., Resp’ts, v. Mukuro Neiva et al., App’lts.
    Sup. Ct., 1 D.,
    January 18, 1895.
   No .opinion. Order denying motion to punish for contempt affirmed, without costs.


text:
    Ichibaro Moriuro et al., Resp’ts, v. Mukuro Neiva et al., App’lts.
    Sup. Ct., 1 D.,
    January 18, 1895.
   No opinion. Motion to open default granted upon payment of costs and disbursements, referee’s fejs and allowance contained in the judgment, and costs and disbursements of appeal, with a waiver of all costs or disbursements which may have been incurred in the contempt proceedings, and also upon appeal from order denying motion to punish for contempt. Upon those terms, the defendant should be allowed to come in and defend in the action for an accounting.


text:
    Morris, Resp’t, v. Morris et al., App’lts.
    Sup. Ct., 4 D.,
    September, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    In Matter of Murphy.
    Sup. Ct., ID.,
    December 14, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Sarah M. Mygatt et al., Resp’ts, v. George S. Coe, App’lt.
    Sup. Ct., 1 D.,
    December 14, 1894.

      Wm. 8. Cogswell, for app’lt; Edward M. Grout, for resp’t.
   Per Curiam.

This action was brought to recover damages for breach of defendant’s covenants of quiet enjoyment and of warranty. The case has been three times tried, twice appealed to this court, and twice to the court of appeals. 44 Hun, 31; 124 N. Y. 212; 142 id. 78. In view of the discussion which this case has already provoked, it would serve no useful purpose to ventilate anew either the law or the facts; it being sufficient to say that, apart from previous opinions expressed or the individual views of the members of this court, upon the facts as now found, we must regard the last opinion of the court of appeals as controlling in respondents’ favor. Judgment accordingly affirmed, with costs.


text:
    Abraham Newkirk, Resp’t, v. Walter H. Hooker et al., App’lts.
    N. Y. C. C.,
    January 12, 1895.

      William B. Dowd, for app’lts; Abram Kling, for resp’t.
   Fitzsimons, J.

Under § 779 of the Code of Civil Procedure, all proceedings on defendants’ part were stayed until the costs provided for by the order of October 30, 1894, were paid. That plaintiff did not waive such stay is evident by the notice served by his attorney on November 13, 1894. His subsequent appearance to oppose a motion made by defendants’ attorney I think cannot be construed as a waiver, in view of the notice above referred to. He did not comply with said order by paying said costs until November 27th, and then for the first time had a right to appeal from the order of November 13th. It was then too late for them to appeal, more than ten days having elapsed, and their notice of appeal was properly returned The order appealed from must therefore be affirmed, with costs.


text:
    New York Cent. & H. R. R. R. Co., Resp’t, v. Henry S. Patten, App'lt.
    Sup. Ct., 4 D.,
    September, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    New York & B. Ferry Co., App’lt, v. Mayor, etc., of City of New York, Resp’t.
    Sup. Ct., 1 D.,
    December 14, 1894.
   No opinion. Judgment affirmed, with costs, on opinion upon previous appeal.


text:
    August Nitsh v. American Cent. Ins. Co.
    Sup. Ct., 2 D.,
    December 10, 1894.
   No opinion. Judgment affirmed.


text:
    Benjamin A. Norton et al., Resp’ts, v. James W. Matthews et al., App’lts.
    Supr. Ct.,
    January 7, 1895.
   Per Curiam.

The appellants have failed to print the evidence given upon the trial by the parties, the findings of fact made by the learned trial judge must be deemed to have been made upon sufficient evidence. The only ques tian raised by the appeal, therefore, is whether the conclusions of law are warranted by the facts as found. Upon á careful consideration of this question we think they are. The judgment should be affirmed, with costs, upon the opinion filed below.


author: Freedman, J

text:
    Patrick O’Hara, Resp’t, v. Third Ave. R. Co., App’lt.
    Supr. Ct.,
    January 7, 1895.

      Hoadly, Lauterbach & Johnson (William N. Cohen and Henry L. Scheuerman, of counsel), for app’lt; Charles Steckler (Alfred Steckler, of counsel), for resp’t.
   Freedman, J

This action was brought to recover damages for personal injuries sustained by the plaintiff through the negligence of the defendant. Tne plaintiff, on March 6, 1892, while in the act of sweeping Third avenue, as an employe of the street cleaning department of the city of New York, was struck by the horses attached to a car belonging to tire defendant, knocked down, and severely injured. A careful examination of the whole case shows that, under the peculiar circumstances of this case, the question of defendant’s negligence and of plaintiff’s contributory negligence were questions of fact, for the jury; that they were properly submitted, and that no sufficient reason exists for which the judgment or order denying defendant’s motion for a new trial should be disturbed. The judgment and order should bo affirmed, with costs.


text:
    Michael O’Neil, Resp’t, v. Hudson Val. Ice Co., App’lt.
    Sup. Ct., 3 D.,
    December 4, 1894.
   No opinion. Judgment affirmed, witlvcosts.


text:
    Marion J. Palmer, App’lt, v. Wesley D. Leonard, Resp’t.
    Sup. Ct., 5 D.,
    December 27, 1894.
   No opinion. Judgment of the county court of Steuben county appealed from affirmed.


text:
    Henry C. L. Peetsch v. William H. Quinn et al.

    N. Y. C. C.,
    December 17, 1894.

      Johnston & Johnston, for app’lt; Michael H. Curran, in pro per.

   Per Curiam.

A careful examination of the affidavits and authorities submitted on this appeal satisfies us that the court below was right, and that the order appealed from should be affirmed with costs.


text:
    People, Resp’t, v. Brockett, App’lt.
    Sup. Ct., 4 D.,
    September, 1894.
   No opinion. Plaintiff allowed twenty days in which to make a case, and serve upon the district attorney, and the district attorney allowed ten days in which to propose amendments. If case is not so made and served, conviction and judgment of Herkimer sessions affirmed.


text:
    People v. Herm et al.

    Sup. Ct., 1 D.,
    December 14, 1894.
   No opinion. Motion granted.


text:
    People, Resp’t, v. Powers, App’lt.
    Sup. Ct., '5 D.,
    December 27, 1894
   No opinion. Interlocutory judgment appealed from affirmed, with costs, on the opinion of Rumsey. J., at special term, with leave to the defendant to-Withdraw demurrer and answer over within twenty days, on payment of the costs of the demurrer and of this appeal.


text:
    People ex rel. David Aldridge, App’lt, v. John P Hughes, Resp’t.
    Sup. Ct., 4 D.,
    September, 1894.
   No opinion. Order affirmed


text:
    People ex rel. Jeremiah J. Cronin, App’lt, v. William J. Buttling, Resp’t.
    Sup. Ct., 2 D„
    July, 1894.
   No opinion. Order affirmed on the opinion of Justice Cullen in the case of Peoples. Jeremiah J Cronin. Brown, P J., not sitting.


author: Per Curiam

text:
    People ex rel. Patrick McClosky v. William S. Andrews.
    Supr. Ct.,
    January 7, 1895.

      Alfred & Charles Steckler, for app’lt; William H. Clark, for resp’t.
   Per Curiam

For the reasons stated in the opinion of the court below the order appealed from must be affirmed, with $50 costs and disbursements.


text:
    People ex rel. John J. McIntyre, App’lt, v. William J. Buttling, Resp’t.
    Sup. Ct., 2 D.,
    July, 1894.
   No opinion. Order affirmed on the opinion of Justice Cullen in the case of People v. Jeremiah J. Cronin. Brown, P. J., not sitting.


text:
    People ex rel. Patrick McNulty v. William S. Andrews.
    Supr. Ct.,
    January 7, 1895.

      Alfred & Charles Steckler, for app’lt; William H. Clark (Theodore Connoly and Terrence Farley, of counsel), for resp’t.
   Per Curiam.

For the reasons set forth in the opinion of the court below the order is affirmed with $50 costs and disbursements.


text:
    People ex rel. Le Roy Maxon, App’lt, v. John C. Schrieber, Resp’t.
    Sup. Ct., 4 D.,
    September, 1894.
   No opinion. Order affirmed. Sec Code Civ. Proo. § 2016, People v. Cavanagh, 2 Parker, Cr. R. 650; 9 Am. & Eng. Enc. Law, 238.


text:
    People, App’lt, v. Soldiers’ Home of Washington, D. C., Resp’t,
    Sup. Ct., 4 D.,
    September, 1894.
   No opinion. Order reversed, and motion denied. Held, that the. act of congress should not be construed to apply to money which had been actually paid over to the soldiers.


text:
    People ex rel. Catharine W. Nolan et al. v. William W. Worden.
    Sup. Ct., 3 D.,
    December 4, 1894.
   No opinion. Order affirmed.


author: Freedman, J.

text:
    Blackburn B. Pew, Resp’t, v. Margaret J. McCaul et al., App’lts.
    Supr. Ct.,
    January 7, 1895.

      A. M. & G. Card, for app’lts, Timothy J. Shed, guardian ad litem and attorney for infant def’ts; Joseph N. Goldbacher, for resp’t
   Freedman, J.

The judgment appealed from is for foreclosure and sale under a mechanic’s lien filed by plaintiff. The substantial controversy between the parties was as to the amount due under che lien. Upon a full review of the whole case, it appears that, upon the evidence, the referee had sufficient grounds for finding, and for refusing to find, as he did; that the exceptions taken by the defendants to the rulings of the referee upon questions of evidence are without rperit, and that no substantial reason exists which calls for reversal. The judgment should be affirmed, with costs.


text:
    John Raven v. William R. Smith.
    Sup. Ct., 2 D.,
    December 10, 1894.
   No opinion. Motion for reargument granted.


author: Dykman, J.

text:
    E. Katie Read v. Abner Mills.
    Sup. Ct., 2 D.,
    December 10, 1894.

      J. A. Thompson, for app’lt; Watts & Chadsey, for resp’t.
   Dykman, J.

This is an action to recover for the services and disbursements of a lawyer who is now dead. The cause was tried before a referee, who has made a report in favor of the plaintiff, upon which a judgment has been on tered. The defendant has appealed from the judgment. Without exception. the case involved questions of fact only, and the referee has made a very careful examination of the testimony. We are satisfied with his conclusions both upon the point of law raised and the questions of fact presented The judgment should be affirmed, with costs.


text:
    Jesse Reed, Resp’t, v. Norman Petrie, App’lt
    Sup. Ct., 4 D.,
    September, 1894.
   No opinion. Judgment and order affirmed, with costs


text:
    Albert B. Rice, Resp’t, v. William Geoghan, App’lt
    Sup. Ct., 1 D.,
    January 18, 1895
    I. Fromme, for app’lt.
   No opinion. Order affirmed, with $10 costs and disbursements


text:
    In Matter of Thomas Richardson’s Will In Matter of Ann P R. Kirkland
    Sup. Ct.. 2 D ,
    December 10, 1894
   No opinion Order of the surrogate affirmed


text:
    Patrick Riley, App’lt, v. Elijah Hallett, Resp’t
    Sup. Ct., 5 D.,
    December 27, 1894
   No opinion. Judgment appealed from affirmed on the principle adjudicated in Evarts v Kiehl, 102 N. Y 296


text:
    William Robertson et al., Resp’ts, v Alfred Sully, App’lt.
    Sup. Ct., 1 D.,
    December 14, 1894.
   No opinion. Order affirmed, with costs


text:
    William P Roome et al., App'lts, v Frederick C. Jennings et al., Resp’ts.
    N. Y. C. P ,
    November 12, 1894

      F. A. Thomson, for app’lts; James L. Bishop, for resp’ts
   Per Curiam.

The appeal must be disposed of in accordance with the former decision of the general term No new question is presented by the a mendment of the complaint, nor by the evidence taken upon the last trial Judgment affirmed


text:
    Catharine Rowe v. Central Railroad of New Jersey
    Sup. Ct., 1 D.,
    January 18, 1895
   No opinion. Order reversed, with $10 costs and disbursements.


text:
    Frederica Rubenstein, Resp’t, v Manhattan Ry Co., App’lt
    Sup. Ct, 1 D ,
    January 18, 1895
   No opinion. Judgment affirmed, with costs


text:
    William Rubenstein, Resp’t, v. Manhattan Ry Co., App’lt
    Sup. Ct., 1 D ,
    January 18, 1895.
   No opinion. Judgment affirmed, with costs


text:
    Ella D Sand, App’lt, v. Henrietta Church et al., Resp’ts
    Sup. Ct., 3 D.,
    December 19, 1894.
   No opinion. Judgment affirmed, with costs,


text:
    William Sander, Resp’t, v. New York El. Ry Co., App’lt.
    Sup. Ct., 1 D ,
    December 14, 1894.
   No opinion Judgment affirmed, with costs.


text:
    John M. Schmidt, Resp’t, v. Manhattan Ry Co , App’lt.
    Supr. Ct.,
    January 7, 1895.

      Davies, Short & Townsend (Julien T Davies and A. T. Stoutenburgh, of counsel), for app’lt; Wm. W. Badger, for resp’t.
   Per Curiam.

The judgment in this case (concerning premises No 1026, Second avenue), should be affirmed, with costs.


text:
    Joseph B. Schram v. Henry Werner et al

    Sup. Ct., 1 D.,
    December 14 1894.
   No opinion. The case having been resettled, a new argument may be had,


text:
    William Schwegler, Resp’t, v. Susan Bray, App’lt.
    N, Y. C. 0,,
    December 17, 1894.

      James R. Angel, for app’lt, John P Schuchman, for respt
   Fitzsimons, J.

We entirely agree with the appellant’s contention that, if the premises sold consisted of two or more known lots, the sheriff’s sale was wrongfully made; but the appeal record shows that the premises so sold were never so known, but, on the contrary, were always described as a single lot or plot. Upon this application, the duty rested upon appellant to establish, by a preponderance of proof, that said premises consisted of two or more known lots. This he has failed to do; but, as above stated, the record shows precisely the contrary. The order must therefore be affirmed, with costs; this, without considering the other points raised by respondent’s counsel.


text:
    William H. Scott et al., App’lts, v. Andes Loun et al., Resp’ts.
    Sup. Ct., 5 D.,
    December 27, 1894.
   No opinion. Judgment and order appealed from affirmed.


text:
    Melvin Silkworth, App’lt, v. Edwin A. Simonds, Resp’t.
    Sup. Ct., 4 D.,
    September, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Baxter Simmons et al., App’lts, v. Myron L. Burrall, Resp’t.
    Sup. Ct., 5 D.,
    December 27, 1894.
   No opinion. Appeal dismissed, without costs to either party, upon stipulation of the attorneys.


text:
    Stephen Smith et al., App’lts, v. Town of Greenwich, Resp’t.
    Sup. Ct., 3 D.,
    July, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Luman A. Soule, Resp’t, v. Victor L. Veyrac, App’lt.
    N. T. 0. 0.,
    December 17, 1894.

      Charles B. Le Barbier, for app’lt; William. T. Mathies, for resp’t.
   Fitzsimons, J.

There is not a single objection in appellant’s favor, as appears from the appeal book. The verdict is amply sustained by the evidence, so that we are unable to find any reason for reversing the judgment herein. It must be affirmed, with costs.


text:
    Charles H. Southard v. Elizabeth J. Wellwood.
    Sup. Ct., 1 D.,
    January 18, 1895.
   No opinion. Order reversed, with $10 costs and disbursements.


text:
    Southern Cotton-Oil Co., App’lt, v. Prudential Fire Ass'n of New York, Resp’t.
    Sup. Ct., 1 D.,
    December 14, 1894.
   No opinion. Judgment affirmed on opinion upon previous appeal.


text:
    Harry G. Southwell, Resp’t, v. Margaret Humphrey, App’lt.
    Sup. Ct., 1 D.,
    December 14, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Heinrich Steihler, App’lt, v. Harry Redding, Resp’t.
    N. Y. 0. P.,
    January 7, 1895.

      H. P. & E. L. McBurney, for app’lt; Edwin & Stern, for resp’t.
   Per Curiam.

No exceptions were taken by the appellant to rulings made upon the trial of this cause, and the evidence presents but a single conflict of fact which it was the peculiar province of the justice to determine, and which determination, in pursuance of the well-settled rule, we decline to disturb. Judgment affirmed, with costs.


author: Dykman, J. Brown, J.

text:
    Dina Sulz v. Mutual Reserve Fund Life Ass’n.
    Sup. Ct., 3 D.,
    December 10, 1894.

      Raphael J. Moses and T. A. Burnham, for app’lt; Ernest P. Brook (Charles J. Patterson, of counsel), for resp’t.
   Dykman, J.

Upon the questions of law involved, the judgment and order should be affirmed upon the opinion of the trial judge upon the motion for a new trial. Upon the questions of fact, there is no cause for interference. The questions were all submitted to the jury by a charge of which the defendant has no reason to complain, and the jury has deduced inferences favorable to the plaintiff from all the facts and circumstances of the case.. It was the peculiar province of the jury to draw such inferences, and we cannot say they are unnatural or erroneous. The judgment and order should be affirmed, with costs.

Brown, J.

I dissent upon the ground that, upon the facts, an action cannot be maintained on the policy in this state.


text:
    William C. Taylor, Resp't, v. Frances P. Allen, App’lt.
    Sup. Ct., 3 D.,
    December 4, 1894.
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Margaret E. Thompson, Resp’t v. Buffalo Ry. Co., App’lt.
    Buff. Supr. Ct.,
    July, 1894.
   No opinion. Exceptions overruled and judgment ordered for the plaintiff on the verdict of the jury, with costs.


text:
    Charlotte Thon, Resp’t, v. Rochester Ry. Co., App’lt.
    Sup. Ct., 5 D.,
    December 27, 1894.
   No opinion. Motion for reargument denied.


text:
    Edward D. Thornton, Resp’t, v. L. Balton Winpenny, App’lt.
    N. Y. O. C.,
    December 17, 1894.

      Perkins & Butler, for app'lt; Brigham & Bayliss, for resp’t.
   Per Curiam.

The amended exception to the decision of the referee brings up but one question for review. The referee decided that the plaintiff, at the special instance and request of defendant, between the 1st day of May and the 15th of June, 1893, rendered services to tire defendant in selling goods, wares and merchandise for him. To this decision defendant excepted, as against the weight of evidence. We think there was sufficient evidence in the case to warrant the conclusion of the referee, and the judgment should therefore be affirmed, with costs.


text:
    Edith E. Tinker, App’lt, v. Metropolitan El. Ry. Co. et al., Resp’ts.
    Sup. Ct., 1 D.,
    December 14, 1894.
   No opinion. Motion denied.


text:
    Tioga Nat. Bank, Resp’t, v. Charles Davis, App’lt.
    Sup. Ct., 4 D.,
    September, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    John H. Titus, Resp’t, v. Town of New Scotland, App’lt.
    Sup. Ct., 3 D.,
    December 4, 1894.
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Morris Tolk, Resp’t, v. James Lynch, App’lt.
    Sup. Ct., 1 D.,
    January 18, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Simpson D. Travis et al., App’lts, v. Board of Sup’rs et al., Resp’ts.
    Sup. Ct., 5 D.,
    December 27, 1894.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements.


author: Gildersleeve, J.

text:
    Clarence True, Resp’t, v. Richard C. Sibley, App’lt.
    Supr. Ct.,
    January 7, 1895.

      Vanderpoel, Cuming & Goodwin (Delos McCurdy, of counsel), for app’lt; August Reymert, for resp’t.
   Gildersleeve, J.

The questions of fact raised by the pleadings and by the conflict of evidence in this action were properly submitted to the jury by the learned trial court in a charge to which no exception was taken. The-jury, by their verdict, found in favor of the plaintiff in 'the sum of $300. With their conclusion the general term will not interfere, as, in our opinion, it is amply justified by the evidence before us. There are no questions of law presented on this appeal which require discussion. The judgment and order appealed from must-be affirmed, with costs.


text:
    Leonard S. Tuthill v E. Davis Tuthill et al.

    Sup. Ct., 2 D..
    December 10, 1894.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    United States Trust Co. of New York, Resp’t, v. James Drake Black et al., App’lts.
    Sup. Ct., 1 D.,
    December 14, 1894.

      E. N. & T. M. Taft, Mornay Williams, Robert S. Minturn, A. R. Dyett, Herbert Barry and Cephas Brainerd, Jr., for various charitable corporations, app’lts; Stephen O. Lockwood, for infant app'lts; Geo H. Balkam, for resp’t.
   Per Curiam.

For the reasons given in Wetmore v. Hospital, 56 Hun, 313, the judgment should be affirmed, with costs.


text:
    Emory M. Van Tassel, App'lt, v. Greenwich Ins. Co. of New York, Resp’t.
    Sup. Ct,, 1 D.,
    December 14, 1894.
   No opinion. Judgment affirmed on opinion on previous appeal.


text:
    Carrie Vogel, Resp't, v. Libbie Miller, App’lt.
    Sup. Ct., 5 1).,
    December 27, 1894.
   No opinion. Judgment and order appealed from affirmed.


text:
    Henry Waldbaum v. James Cunningham Sons & Co.
    Sup. Ct., 5 D.,
    December 27, 1894.
   Plaintiff’s motion for a new trial denied, and judgment ordered for the defendant on the nonsuit.


text:
    George S. Wallace, Resp’t, v. Central Vermont R. Co., App’lt.
    Sup. Ct., 3 D.,
    December 4, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Thomas P. Wallace, App’lt, v. Herman Kaempf, Resp’t.
    N. Y. C. C.,
    December 17. 1894.

      George W. Wallace, for app’lt; Hahn, Myers & Browner, for resp’t.
   Fitzsimons, J.

The complaint was rightfully dismissed. There is nothing in the evidence submitted showing that plaintiff parted with any security or claim which they held against Bartz in consideration of the note in suit, or tliat they even extended the term of credit,—in fact it seems that they parted with nothing of value ; therefore the note sued upon is void for the want of consideration. The judgment must therefore be affirmed, with costs.


text:
    Mary E. Ward v. George B. Boyce et al.

    Sup, Ct. 3 D;,
    December 19, 1894.
   No opinion. Motion for leave to go to the court of appeals granted. '


text:
    William H. Waugh, Resp’t, v. Toussaint Barcomb et al., App'lts.
    Sup. Ct. 3 D.,
    December 4, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Peter J. West, Resp’t, v. Peter Buttner, App’lt.
    Sup, Ct. 4 D.,
    September, 1894.
   No opinion. Judgment affirmed, with costs. See Lewis v. Yagel, 77 Hun, 337; Crouch v. Gutmann, 134 N. Y. 47; Peck v State, 137 N. Y. 377.


text:
    Walter White, App'lt, v. Isaac H. Dahlman, Resp’t.
    Sup. Ct. 3 D.,
    December 4, 1894.
   No opinion. Order affirmed, with $10 costs and printing and other disbursements.


text:
    Whitehill Engine & Pictet Ice Mach. Co., Resp’t, v. Binz, App’lt.
    Sup. Ct. 3 D.,
    December 10, 1894.

      James & Thomas H. Troy, for app’lt; Chas. J. Patterson, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff after a trial at the circuit, and from an order denying a motion for a new trial on the minutes of the court. The action was brought for the recovery of machinery, pipes and other articles which had been used in the brewery at Fort Hamilton. The ownership of the property was in the plaintiff, and that fact was undisputed. The principal question litigated has reference to the demand and refusal to deliver the property. That question was submitted to the jury, and must have been decided in favor of the plaintiff, and there is evidence sufficient to support the verdict upon that .point. The same thing may be said respecting the damages, and as we find no error in the record, the judgment and order denying the motion for a new trial should be affirmed, with costs.


text:
    Mary M. Whiting, Resp’t, v. Standard Gas-light Co., App’lt.
    . Sup. Ct. 1 D.,
    December 14, 1894.

      Henry Thompson, for app’lt; T. McCants Stewart, for resp’t.
   Per Curiam

There was such evidence of negligence on the part of the defendant, and absence of contributory negligence on the part of the plaintiff, as justified the submission of the case to "the jury. The appellant contends that excessive damages were awarded by the verdict. If we were inclined to tlie view that the evidence before us would justify such contention, still we could not interfere with the judgment, because the record does not inform us that it contains all the evidence. The judgment and order appealed from should be affirmed, with costs,


author: Pep Curiam.

text:
    Caroline S. Wilkinson, Resp’t, v. Eugene Davies, App’lt.
    Sup. Ct. 1 D.,
    December 14, 1894.

      Byron Travel, for app’lt; W. D. Leonard, for resp’t.
   Pep Curiam.

This action was brought upon an agreement made with the plaintiff by the defendant to pay a certain sum for rooms and board, with no deductions in case of absence, to recover the amount agreed to be paid, less the- amount received. There is no dispute as to the facts. The plaintiff was entitled to recover what the defendant agreed to pay, and there was no question in the case as to profits. The judgment should be affirmed, with costs.


text:
    Clarence W. Wood, Resp’t, v. Sidney Sash, Blind & Furniture Co., App’lt.
    Sup. Ct. ID.,
    September, 1894.
   Per Curiam.

Without passing upon the question raised by the demurrers herein, we are of the opinion that they were not so clearly without foundation as to justify the special term in holding them frivolous. Cook v. Warren, 88 N. Y. 37. Order reversed, with $10 costs and disbursements. Motions denied, with $10 costs.


text:
    William G. Wood, Resp’t, v. Walter W. Taylor, App’lt.
    Supr. Ct.
    January 7, 1895.

      A. W. Birkins, for app’lt; James C. De La Mare, for resp’t.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion filed by the learned judge below.


text:
    David Wright, Resp’t, v. James Shanahan, App’lt.
    Sup. Ct. 5 D,,
    December 27, 1894.
   No opinion. Judgment appealed from affirmed, with costs, without prejudice to a motion at special term to conform the judgment to the decision of the trial court.


author: Van Brunt, P. J.

text:
    Lawrence J. O’Connor, Resp’t, v. Horace Waldo, Individually and as Administrator, etc., et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Trustee—Powers.
    Where there is a designation of the method, in which the trust estate is to be sold, if at all, the trustee cannot convey any title except in the manner provided for by the trust deed.
    Appeal from a judgment in favor of plaintiff.

      Chas. E. Miller, for app’lt Horace Waldo; John A. Deady, guardian ad litem, for app’lt Rhinelander Waldo; J. R. Abney, for resp’t.
   Van Brunt, P. J.

This action was brought against Horace Waldo, individually, as one of the devisees of Sarah C. H Waldo, deceased, and against Rhinelander Waldo, individually, as one of the heirs of a devisee of said Sarah C. H. Waldo, deceased, to collect out of real property in the city of New York a certain debt claimed to have been due Sarah C. H. Waldo at her death. The action was brought upon a bond alleged to have been executed in South Carolina on the 27tli of April, 1870, by Sarah C. H. Waldo, and delivered to Martin L. Wilkins, as special commissioner, appointed by the court of common pleas for Charleston county, S. C. Wilkins is alleged to have assigned this bond to Elizabeth H. Jervey, guardian of Hannah H. Trapier, on the 16th of January, 1871. The said bond fell due on the 12th of January, 1873. It is further claimed that under a marriage settlement, dated February 11, 1878, the bond was assigned to Theodore D. ¿Jervey, as trustee. On the 10th of April, 1884, it is claimed. that Theodore D. Jervey, as trustee, assigned the bond to the plaintiff, and this action was commenced upon said bond in July, 1884.

Various questions have been presented upon this appeal which it is not necessary to consider. The only one which is proper to discuss is that challenging the title of the plaintiff. It is claimed that the assignor of the plaintiff, being a trustee, had no power to assign the bond in question to the plaintiff in the manner attempted to be done by him. The said trustee acquired his title, if any, by reason of a marriage settlement entered into between Arthur P. Jervey, of the first part, Elizabeth H. Jervey and Hannah H. Trapier, of the second part, and Theodore D. Jervey, of the third part. This settlement, after reciting that a marriage was shortly to be solemnized between Arthur P. Jervey and said Hannah H. Trapier, with the consent and approbation of said Elizabeth H. Jervey, the parent and guardian of said Hannah H. Trapier, who were the parties of the second part, and that it was agreed that the property of the said Hannah H. Trapier should be conveyed and settled in trust in the manner thereinafter provided, conveyed in consideration of said agreement and of said intended marriage, certain property, including the bond in question to Theodore D. Jervey, the party of the third part, in trust to permit and suffer the said Hannah H. Trapier, for and during the term of her natural life, to hold the said property to her own separate use, and, if her said proposed husband should survive her, then in trust to permit and suffer the said Arthur P. Jervey to take and receive the income and profits thereof during the term of his natural life, and, from and after the death of both, making other dispositions of the property. The deed further provided that if, at any time thereafter the said Arthur'P. and Hannah H.., his intended wife, during their joint lives, or the said Hannah, in case she survived, should be minded to dispose of the said property, or any part thereof, for the purpose of changing the investment, it should be lawful for said Theodore H. Jervey, his heirs or assigns, upon the written request of the said Arthur and Hannah, or of the said ■Hannah, as survivor to sell and dispose of said property, or any part thereof; provided, however, that the net proceeds of such sale should be invested forthwith by said Theodore D. Jervey, his heirs or assigns, in his or their names, as trustees, etc.

It seems to be apparent upon a consideration of this trust deed that the trustee had no power to make any conveyance of this trust property except upon the consent of his cestuis que trustent. In the case at bar it is not claimed that- any such consent was obtained. All that the record discloses is a simple assignment executed by.the trustee. The rule has been too well established to need the citation of authorities here that a trustee has no general power of disposition of a trust estate, but must derive such power from the instrument creating the trust, or in special circumstances it has been held that such power might be implied. But, where there is a designation of the method in which the trust estate is to be sold, if at all, there can be no question but that the trustee cannot convey any title except in the manner provided for by the. trust deed. The provision in the deed necessarily excludes all other powers. At the trial, when this assignment from the trustee was offered in evidence, it was objected to as being immaterial, incompetent, and irrelevant. It was clearly incompetent, under the provisions of the trust deed, to prove a conveyance, of any title to the nlaintiff of the bond in question.

Without discussing the other points raised, it would seem that this objection is fatal to the judgment appealed from, and that the same should be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.


author: O’Brien, J. Parker, J.

text:
    William H. Sawyer Lumber Company, App’lt, v. Edward Bussell et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Attachment—Foreign corporation.
    The papers, upon which, a foreign corporation, doing business in this state, in relation to a transaction arising here, procures an attachment, must show, for the purposes of the attachment, that the corporation has complied with § 15, chap. 687 of 1892.
    Appeal from an order, vacating a warrant of attachment.

      Franklin Pierce, for app It; George W. Stephens, for resp’ts.
   O’Brien, J.

It appeared in the affidavit on which the attachment was obtained that the plaintiff was a foreign corporation, but was doing business in this state, and that the transaction out of which the action arose occurred in this state. The motion to vacate was upon the ground that there was no evidence that the plaintiff had obtained the certificate required by section 15 of chapter 687 of the Laws of 1892, and that, therefore, the warrant of attachment should not have been issued. This section provides :

“Mo foreign stock corporation other than a monied corporation shall do business in this state without having first procured from the secretary of state a certificate that'it has complied with all the requirements of law to authorize it to do business in this state. * * * Mo foreign stock corporation doing business in this state without such certificate shall maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate.”

.Upon this ground the special term granted the motion to vacate the attachment, and from the order granting such motion this appeal is taken.

The proposition of law thus presented for our consideration is: Must the papers upon which a foreign corporation, doing business in this state, in relation to a transaction arising in this state, procures an attachment, show, for the purposes of the attachment, that the corporation has complied with section 15 of said act? and, in case such fact does not appear in the» affidavit, is it legal causé for vacating the warrant of attachment ? While this provision does not affect the cause of action, it does affect the remedy ; and while it may be true that a good cause of action is set forth, and that, for this reason, a complaint would not be obnoxious to demurrer, but would require that the objection should be taken by answer, if the question were one as to the sufficiency of the pleading, still, when we remember that an attachment is a provisional remedy, and that the section itself is aimed, not at the cause of action, but against its enforcement by a corporation, unless it has procured the certificate, the question is not one of pleading, nor as to the sufficiency of the complaint, but as to whether or not, upon the facts stated, the plaintiff is entitled to the remedy sought. The Code provides, it is true, in what cases attachments may be issued, and what is* necessary to be shown by the plaintiff to entitle the party to the attachment; but these provisions are not"by any means exclusive, and it is entirely within the province of the legislature to affix other conditions to the right oí persons in this state to resort to such remedy. The provision is that “no foreign stock corporation doing business in this state without such certificate shall maintain any actionand, as a remedy by attachment is a step in an action, it is clear that it applies equally to the remedies to which, but for the prohibition of the statute, a party would be entitled..

Apart, therefore, from the question of whether or not the complaint would be bad on demurrer, if it failed to allege the procuring of a certificate, we have held in regard to attachments that all facts going to the jurisdiction of the court, or to the right of the plaintiff to maintain the action, must be affirmatively set forth in the motion papers, and a defect in this respect is fatal to the attachment. The more numerous and recent instances of such rule in this court relate to cases where attachments have been issued against foreign corporations when the plaintiff has failed to state the facts necessary to give the court jurisdiction of the cause of action. In Oliver v. Walter Heywood Chair Manufacturing Co., 32 St. Rep. 542, it is said:

“The power of the court to reach by its process the property of a foreign corporation within the limits of this state depends entirely upon statutory enactments, and does not proceed from any inherent or general jurisdiction which the court possesses. Therefore, where such right is created by statute, the conditions thereunder attached to its exercise must be fulfilled, and they must appear before the court obtains jurisdiction.”

In the case at bar the plaintiff is a foreign corporation, and an attachment was issued against this property for a cause of action which does not appear to have arisen in this state ; and therefore it was necessary, in order that the court should acquire jurisdiction, for it to appear that the plaintiff was a resident of the state. The papers are silent upon this point. Where the statute, as a preliminary to jurisdiction, requires facts to exist, they cannot be presumed. To the same effect is the case of Smith v. Union Milk Co., 70 Hun, 848 ; 53 St. Rep. 891.

These cases are authority for the proposition urged by the respondent that, for the purpose of obtaining a warrant of attachment, it is necessary that the papers of the attaching creditor should show all the facts which, entitle him to maintain the action, and which give the court jurisdiction, and that, if the papers fail to set forth the facts in either respect, the attachment will be vacated. Applying this rule, it here appears that there is an express statute forbidding a foreign corporation to maintain an action without procuring a certificate from the secretary of state. While, therefore, it presupposes a good cause of action, there is an express prohibition against enforcing it, or having any remedy thereon, until such certificate is procured. The certificate, therefore, being a condition precedent to the right to maintain the action, it was necessary to have it appear in the papers upon which -the attachment was granted that the foreign corporation had complied with the condition, upon compliance with which alone its right to maintain the action would be justified.

We think, therefore, that the order is right, and should be affirmed, with $10 costs and disbursements.

Yan Brunt, P. J., concurs.

Parker, J.

(dissenting).—The prevailing opinion concedes that the omission by a foreign corporation to allege in its complaint that it has obtained from the secretary of state the certificate required by § 15, c. 687, Laws 1892, does not constitute a ground for demurrer, and therefore the papers on which plaintiff applied for the attachment stated a good cause of action. Having complied with the provisions of § 636 of the Code of Civil Procedure in that respect, it was entitled to an attachment, unless the moving papers failed to meet the other requirements of that section, and it is not pretended tnat they did. I ad vise a reversal of the order.


author: O’Brien, J.

text:
    James Murray et al., App’lts, v. Matthew Micolino et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Mechanic’s lien—Order.
    Where the-owner completes the building under a clause of the contract authorizing him to do so on default of the contractor, an order given by the contractor to the sub-contractor on the owner is an assignment pro tanto of the balance due the contractor after deducting the cost of completing the building, and is entitled to payment but of such balance in preference to liens filed after presentment.
    Appeal from a judgment, dismissing the complaint.

      James A. Seaman and C. S. Bloomfield, for app’lts; Wm. H. Ostrander, for resp’ts.
   O’Brien, J.

The defendant Micolino was the owner of property, and entered into an agreement with the defendant Wood, as contractor, under the terms of which the latter was to furnish material and do all the carpenter work on the two houses to be erected, for which Micolino was to pay in installments as the work progressed, the final payment to be made “ when the buildings are completed and this contract fulfilled.” The contract further provided that if the contractor should fail to supply a sufficiency of workmen or materials, or to prosecute the work with promptness and diligence, the owner could, on notice, provide such labor and materials, and the expense of furnishing the same, and the damage resulting to the owner from the contractor’s failure, should be deducted from any moneys that might become due the contractor under the contract. It further provided that a final payment should not be made until the contractor should give the architect satisfactory evidence that there was no liens or claims chargeable against the contractor; and, further, that, if there were any, the owner could retain from any payments a sufficient amount to indemnify him completely against the same until they should be satisfied and discharged. The contractor, Wood, entered into a subcontract with the plaintiffs, by which the latter were to furnish certain trimmings for the buildings at an agreed price, and thereafter plaintiffs commenced performance of that agreement. Subsequently Wood gave to the plaintiffs a written order upon the owner to pay to plaintiffs certain amounts as therein specified, and to charge the same to his (Wood's) account. The testimony is that this order was delivered to Micolino, and retained by him for consideration ; but whether it was accepted by him, or whether the payment made subsequent thereto was in accordance with the terms of such order, or by another arrangement between the parties, is in dispute,—one of plaintiffs’ witnesses testifying that the order was accepted, and that the payment was made under the order. However this may be, after the order was given, the con-, tractor having failed to perform his contract, the owner, after notice, entered upon and completed the buildings, employing suitable persons to furnish the work and materials, and paying them therefor out of the moneys held by him and reserved for the final payment; and, after such payments made, there remained in Micolino’s hands the sum of $1,821.35, out of which the plaintiffs claimed the balancedue them of $1,662.50. The trial judge dismissed the complaint, upon the ground that, even if it were proved that the order was delivered, plaintiffs could not recover, because “ the conditions precedent stated in the contract have not been complied with.” The specific conditions were not pointed out by the judge, but we assume one to be that, as the final payment was to be made “ when the.balance of machinery is delivered, and the carpenter’s contract entirely finished,” no recovery could be had on account of the contractor’s failure fully to complete. This might have ■been a correct ruling, if the contract had provided for the finishing by the original contractor; but the .contract itself showed that, that in the event of the contractor not finishing, the owner had the right to complete the work at the expense of such contractor. In other words, upon the failure of the contractor to complete as required by the terms of the contract, the owner, as the agent for the contractor, had the right to finish the work and deduct the expense thereof from the final payment coming to the contractor. This was the course followed by the owner, who testified that he went on and finished the buildings under the contract, and, aftqr finishing and making the payments, there remained in his hands the sum already mentioned.

■ As the complaint was drawn,.it would seem that the theory of plaintiffs’ action was to charge the defendant Micolino personally with the obligation of the payments under the order, upon the ground that he had accepted the same; and if the motion to dismiss had been predicated upon defective pleadings, there might be a basis for the ruling made dismissing the complaint. The court, however, expressly stated that its ruling was not upon any defect in pleading, but was on account of defect of proof; and therefore, as the complaint might have been amended if such objection had been made, we have a right to consider the proof for the purpose of determining whether the plaintiffs were entitled to any relief. There was some evidence, though slight, upon the question of acceptance. But apart, from this, upon the question of delivery of the order, there was sufficient evidence for it to go to the jury as a question of fact, and upon this appeal we must assume that it might have been resolved in plaintiffs’ favor. Assuming, therefore, that the order was delivered, though not accepted, its effect has been determined in two cases, which seem to us to dispose of the questions presented. Lauer v. Dunn, 115 N. Y. 405; 26 St. Rep. 412; Beardsley v. Cook, 143 17. Y. 143; 62 St. Rep. 144. In Lauer v. Dunn, which, like this, was a controversy over payments under a building contract, it was provided that the final payment should be made “ within thirty days after its final completion and acceptance by the architect.” It was also provided that, in case any liens should exist upon the property at the time any payment was to be made, such payment, or such part thereof as shall be equal to not less than double the amount of such liens, should not be payable at the stipulated times. Upon the completion of the buildings, there was due the contractor $750, against which an order was drawn directing payment to subcontractors of $700, with a request that it be charged to the contract. The subcontractors presented the order, but it was not paid. A few days after liens were filed by various parties. ' In an action brought by plaintiffs upon the order, commenced more than thirty days after the completion of the buildings, plaintiffs were nonsuited. “Held, error; that the order amounted in law to an assignment, pro tanto, of the fund in the owner’s hands; that it having been made in good faith, and for a valuable consideration, and notice thereof given to the owner prior to the filing of any lien, no subsequent liens could defeat plaintiffs’ right to the money, and the owner would have been protected in its payment; that the provision respecting the owner’s right to retain double the amount of any lien filed, simply meant that if, when moneys were payable to the contractor, liens existed, the owner might reserve double the amount claimed under them for such moneys, and, as no Tens existed, plaintiffs were entitled to recover ” And in Beardsley v. Cook, supra, it is said :

“The acceptance of the older by the defendant operated as an equitable assignment of so much of the last payment to the plaintiff, and the plaintiff’s right could not be affected by payments made by the defendant in advance of the work, or by the liens of mechanics or material men filed subsequent to the assignment.”

The opinion continues:

“ But, unless that payment became "due and payable by the defendant, the plaintiff could not under the circumstances disclosed by the record, recover upon the order as an absolute and unconditional promise. The plaintiff’s right to recover the payment, or that part of it assigned to him by the order, was contingent upon performance of the contract, so as to render the last installment, or at least some part of it, due and payable. The contract was not performed by the builders, but by the defendant himself, who was obliged to complete the houses. The assignment to the plaintiff was subject to any deduction which the defendant had a right to make from the payment on account of the reasonable and fair expense to him in completing the houses. He could claim payment, of the order only from the balance.”

Upon the proof as it stood, therefore, at the close of the plaintiffs’ case, it appeared that they had a good claim against the contractor ; that there remained in the owner’s hands an amount available for the payment of plaintiffs’ claim, in whole or in part; and that the contractor had assigned his interest in such amount to an extent sufficient to provide for the payment, in whole or in part of such claim. The election of the owner to complete the contract, instead of insisting upon the performance by the contractor, modified the relation of the parties by constituting the owner the agent of the contractor, and creating a new fund upon which the plaintiffs’ claim, fortified by the order of the contractor, attached ; that is, instead of the balance under the terms of the contract, another fund was substituted, namely, so much of the contract price as remained unpaid in the owner’s hands after deducting what he had expended to complete, which, as shown by the testimony, was $1,821.35. If there were persons other than the plaintiffs entitled to any portion of the fund, that was a matter of defense. Here was-a fund which had been substituted for the balance or final payment under the original contract, and, if in respect thereto there was a dispute, the owner had it in his power to bring in all those' who had any interest in the fund,or he could assume, as he did, the-responsibility of contesting on their behalf the right of the plaintiffs to any portion of it; and in this connection could have shown, had he been put to his defense, just what the situation of the fund and the legal claims against it were. As the evidence stood, however, at the close of plaintiffs’ case (assuming that the pleadings-would have been amended to conform to the proof), sufficient had been shown to entitle the plaintiffs to a payment, in whole or in part, of their claim. Under such circumstances, the dismissal of the complaint was error, for which the judgment should be reversed and a new trial ordered, with costs to appellants to abide the; event

All concur.


text:
    James E. Brett et al., App’lts, v. Harlan and Hollingsworth Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Demurrage—When lay days begin.
    Where the owners of a vessel undertake an employment and a voyage, which is not completed until the vessel has secured a berth alongside the pier at her destination, the lay days do not begin to run when the vessel arrives at the port of destination, bút only from the time she is berthed at. the pier.
    Appeal from a judgment, entered on a verdict, directed by the' court in favor of plaintiffs.

      John A. Deady, for pl’ffs; Henry B. B. Stapler, for def’ts.
   O’Brien, J.

This action is brought by the owners of the barkentine Eleanor M. Williams to recover from the defendent, the charterer of said vessel, freight and demurrage due under a charter party. The defendant did not contest the freight money, and for the amount thereof a verdict was directed by the court. Its liability for demurrage was contested, and presents the only question upon this appeal.

Under the charter, the vessel went to Wilmington, Del., loaded there, and took a cargo of car material for two railway companies, and sailed thence for Santos, in South America, where she arrived on or about the 6th of February, 1891. On the 10th the captain of the vessel gave written notice to Hampshire & Co. (defendant’s agents at Santos, and consignees of the cargo) that the vessel was ready to discharge. The agents refused to accept the notice, upon the ground that it could not be given until the vessel had been berthed at the pier or wharf, ready to discharge cargo. It is conceded that when such notice was given the vessel was in the stream, and there remained until about the 24th of March, when, for the first time, she reached the railway pier, and was berthed, ready to discharge the cargo. There she remained only two days, engaged in discharging, when, yellow fever having broken out in ■ Santos, the vessel was ordered to quarantine, where she lay several weeks before again reaching the wharf and discharging the cargo, which latter was completed on the 20th of June. The testimony shows that there was but one wharf at Santos, suitable, by reason of depth of water and size, to afford facilities for discharging, and that this was owned or controlled by the Sao Paulo Bailway, and was “the railroad company’s pier at Santos” mentioned in the charter party. At such railway wharf there were nine berths for vessels of the size of the Williams, and it would appear that during the time from the 10th of February to the 16th of March, while the vessel was in the stream, there were berths vacant at the railway wharf. Ho satisfactory explanation is given why, under these conditions, the vessel was not berthed, except that both parties claimed that the duty of procuring a berth rested upon the other,—the plaintiffs, on the one hand, insisting that it was the fault of the agents of the defendant, who had control of the pier; and the defendant, that its agents had no such control, and that it was under no obligation, under the charter party, to procure a berth for the vessel. The question of fact thus presented, as to whether or not the agents of the defendant had control of the railway wharf, we think, must be resolved in the defendant’s favor. The master of the vessel assumed that the defendant’s agents were obliged to procure him a berth, and that, having control of the pier, they should have done so, but, beyond this, there is no evidence in the case tending to show that the agents of the defendant, who were the consignees, had any supervision, direction, or control of the railway wharf. When the plaintiffs’ witnesses were asked the question, directly, as to whether Hampshire & Go., defendant’s agents, had any control of the pier, they answered that it was called the “Sao Paulo Bailway Pier,” but that they did not know whether Hampshire & Co. had any control, or anything whatever to do with the pier; and it is conceded the Sao Paulo Bail way was not one of the railways for which any portion of the cargo was intended. In the absence of evidence showing that defendant’s agents had such control, the fact cannot be assumed, and we cannot proceed to determine the question upon plaintiffs’ theory, that, having the control and management of the pier, it was the duty of such agents to facilitate, and not delay, the berthing of the vessel. The question of fact thus disposed of we think important, because if it had appeared that, having the right to determine what vessels should use the pier for the purpose of unloading, if they had permitted vessels arriving after the Williams (which it appears those who owned the pier did) to unload, thus giving a preference and causing the delay, they would have been, upon the ground that it was due to their default, legally chargeable with demurrage.

This brings us to a consideration of the question of law which must determine the rights of the parties upon this appeal,-—as to whether, under the contract between the parties, the lay days during which it was agreed the defendant should unload the vessel should commence to run from the time that the vessel arrived in the stream at Santos, and gave notice of readiness to discharge, or whether such time only began to run when the vessel was berthed alongside the railway wharf, and ready to discharge her cargo. Upon this subject the charter party says:

“It is agreed that the lay days for loading and discharging shall be as follows (if not sooner dispatched), commencing from the time the vessel is ready to receive or discharge cargo, the captain having given written notice to that effect: Thirty-five running days, Sundays excepted, for loading and discharging. * * *

The cargo to be received alongside, within reach of ship’s tackle, and to be delivered alongside, within reach of vessel’s tackles, on the railroad company’s pier at Santos, where she can safely lay afloat. Lighterage, if any be necessary, to be at expense of consignees. Yessel to haul once only to loading or discharging wharf at her own expense. If required to move a second time, charterers to pay towage. * * * Yessel to be allowed free wharf-age at Wilmington.”

It further provided:

“ Bills of lading to be signed as presented, without prejudice to this charter."

The charter party, then, with the bills of lading, constitutes the contract between the parties ; but, as seen from the provision just quoted, the bills of lading are subject to the charter party. If resort may be had to the bills of lading, upon this question of when the lay days commenced to run, there will be found therein this statement: “ Goods to be discharged at railway wharf.” As the bills of lading were, under the charter party, to be made subject thereto, we think the question here presented is to be determined by the construction of the charter party itself, and we are to gather therefrom what were the obligations, respectively of the parties, as to berthing the vessel at the railroad pier. If this obligation was upon the defendant, then, clearly, upon the vessel’s arrival in the stream at Santos, and giving notice of readiness to discharge, the lay days would commence to run, and for any time thereafter occupied the defendant would be liable for demurrage. On the other hand, if the voyage was not completed, and the plaintiffs’ duty fulfilled, until the vessel was permanently berthed at the railway wharf at Santos, and ready to deliver her cargo, then the delay that ensued in procuring such berth, unless, as already said, plaintiffs were prevented by the defendant or its agents while in the ownership or control of the pier, would not make the latter liable for demurrage.

We have been referred to many eases where the construction of charter parties was involved, but as these turn upon the construction of contracts similar it may be, but not in all respects like, to the one here involved, no advantage can be gained from collating and discussing them ; thinking, as we do, that, with respect to questions arising upon contracts of this character, just as in the construction of wills or other written instruments, each must stand upon its own language, and upon the intent of the parties, to be gathered therefrom, —the intent, if susceptible of ascertainment, to control. By express language, the defendant undertook the obligation of providing a berth át the place of loading, and the absence of any express agreement to provide one at the place of discharge is significant. Moreover, the language already quoted from the charter party, showing that, at a berth to be provided by the defendant, the cargo was to be received by the plaintiffs within reach of ship’s tackle, and “to be delivered alongside, within’ reach of vessel’s tackles, on the railroad company’s pier at Santos,’ seems to us, clearly, to point out that, for the compensation provided, the plaintiffs undertook an employment and a voyage which was not completed until the vessel had secured a berth alongside the railroad company’s pier at Santos. It will thus be seen that our conclusion agrees with that of the learned trial judge —that under the charter party the voyage was not completed, and the lay days did not commence to run, until the vessel was permanently berthed at the railway wharf at Santos, and ready to deliver her cargo alongside, within reach of her tackles, on the railway wharf, and the captain had given notice to that effect

It is unnecessary to discuss the question of the defendant’s duty in respect to providing lighterage, because the evidence shows that, if the cargo had been placed upon lighters, the latter would have been required to be berthed at the pier before the cargo could have been delivered to the consignees, and it was not shown that there were any greater facilities for securing a berth for the lighters than there were for procuring a berth for the vessel itself. We think that the exceptions should be overruled, and the motion for a new trial denied, with costs, and a judgment is ordered to be entered upon the verdict as directed.

All concur.


text:
    Clinton Bank, App’lt, v. August M. Collignon, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

      1. Appeal—Requests to charge.
    Requests to charge, couched in language which contains expressions laying down a more stringent rule than is consonant with the law applicable to the case, are properly denied.
    2. Same—Finding.
    The evidence was held not sufficient to sustain a finding that a note given by a husband to his wife was supported by a sufficient consideration.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      Clarence Lexow, for app’lt; R. W. Todd, for resp’t.
   Van Brunt, P. J.

The respondent slates this action to have been brought to recover the sum of $6,000, and interest from June 6, 1892, as damages alleged to have been sustained by plaintiff on account of an alleged fraudulent disposition by defendant of his property with intent to cheat and defraud his creditors, and particularly the plaintiff, after he had incurred the indebtedness herein with the plaintiff. We do not understand this to have been the nature of the action, but, rather, that the action was to recover upon a promissory note made by the defendant on the 1st day of February, 1892, for $6,000, payable four months after date; and, pursuant to the provisions of subdivision 4 of section 549 of the Code of Civil Procedure, the plaintiff alleged a fraudulent disposition of the property to support an order of arrest upon that ground; and, pursuant to such provisions, it was necessary, in order that the plaintiff should succeed upon the trial of the action, that he should prove such fraud. It is claimed upon the part of the appellant that the learned court upon the trial of this action erred in refusing divers requests to charge made by the appellant’s counsel. Upon an examination of these requests, it appears that they all, except one, were couched in language which contained expressions laying down a more stringent rule than was consonant with the law, as we understand it, applicable to the c\se. It is not necessary, that we should consider these requests in detail, because they all present the same general features in this respect, and call for a class of proof which does not obtain ordinarily in civil cases. In respect to the request which is not subject to this criticism, it does not seem to be applicable to the facts as established upon the trial.

This leaves -the question as to whether the verdict of the jury was against the evidence, and whether the court below, upon the motion of the plaintiff, should have set it aside upon that ground. Upon an examination of the case, we are of opinion that the court erred in this respect. Much of the story as told by the defendant and his witnesses is in the highest degree improbable, and some of its features show beyond question a fraudulent, disposition of property by the defendant, in whjcb the preponderance of evidence would seem to indicate the defendant’s wife, who is alleged to have received the property fraudulently misapplied, participated. It appears from the evidence that the defendant had been in business for a number of years prior to the time of his failure, in April, 1892. Before such failure he conveyed a considerable amount of property to his wife for the' purpose of paying an alleged indebtedness to her of $14,600, and it is the consideration for this transfer which is attacked. The defendant claimed that this consideration was made up of a note bearing date June 1, 1870, for $1,000, and of another note bearing date January 1, 1892, for $13,600. It is the consideration for this latter note which is more particularly called in question. It appears that for 20 years prior to the time of his failure the defendant had been keeping house, that he had paid the rent of the house, and had made certain allowances to his wife for running the house. It appears from the testimony of the wife that at various periods during this time she kept boarders, or let out furnished rooms; and she claims that a large part of the money which formed the consideration of this note of January 1, 1892, for $13,600, was what she had accumulated in the business of keeping boarders in the way stated, and which she turned over to her husband, he giving her from time to time notes therefor. The wife was unable to recollect whether it was $3,000 or $4,000 of boarders’ money and interest, or evidently exactly what amount came from this source. The balance of the note was made up of money which had been given for Christmas and birthday presents made by the’ defendant to his wife during this long course of years, ranging from $25 to $1,000. The defendant claims to have been in the habit of giving his wife money as presents at Christmas and upon her birthday, and that she was in the habit of returning these moneys to him, he giving her notes therefor. But notwithstanding the observance upon the part of the defendant of the anniversary of his wife’s birth by these large and munificent presents, he was unable to give its date. It further appears that no entries whatever were made in the defendant’s books, according to his own testimony, in reference to these notes, and the only accounts that he had were the notes held by his wife. Then, on the 1st of January, 1892, when he desired to lump the thing, his wife holding two or three notes for different amounts given at different dates, interest was calculated, and this one note was given of $13,600. But there is no explanation, if the thing was to be lumped, why they did not lump the $1,000 note of June, 1870, which probably may have had some foundation outside of the imagination of the parties to the transaction. It was sought to reinforce the evidence of the defendant and his wife in regard to the consideration for the $13,600 note by the testimony of their daughter, who it is stated, at the time of the giving of the note of January 1, 1892, calculated the iuterest, etc. She swears that she was present, and that her mother had some notes, but she knew nothing as to the consideration of the note, and her testimony is of little weight in considering the main q uestion, as to whether this was not a scheme gotten up by this defendant for the purpose of laying aside something for a rainy day at- the expense of his "creditors. That the defendant is utterly unworthy of belief is clearly established. He saj's, in accounting for the diminution of his assets, that he lost some $20,000 speculating in stocks in the office of Henry Clews & Co. He then states that he lost $20,000 more in a broker’s office down town, whose name -he does not know, and of the location of which he is ignorant; and that although he kept a bank account, and was perfectly familiar with the methods of business, he carried his money down there in bills, at one time having $12,000 in his pocket, and that he was recommended to this place by somebody he did not know, but he thought it was all straight. How this defendant could possibly expect anybody but children of very credulous years to believe, such a story it is impossible to imagine. It is' so false upon its face that it does not need comment to point its incredibility. We. further find that the defendant seems to have made representations in regard to his property which were inconsistent with the truth, if this indebtedness to his wife existed. And it seems to us that the whole story is of such a fictitious character that it can have but little weight in a court of justice. If these moneys were ever given by the defendant to his wife, it is manifest from the evidence that it was with the expectation that they should be returned,—loaned by her, as he calls it,—and that there was no expectation that she should retain possession of the same. Such an alleged gift could confer no title in the plaintiff which could stand against the claims of creditors. It seems to be unn ecessary to discuss the evidence in detail, as the general features which have been above mentioned are sufficient to characterize the whole attitude of the defendant, and to show that, in order that he might secrete some of his property from his creditors, it was necessary that he should invent losses which he had never sustained.» With this feature in the case it was evident that the defendant’s intentions were fraudulent, and that was all that was necessary to maintain the action. The order denying the motion for a new trial should be reversed, and the verdict set aside, and the judgment vacated, with costs of appeal, and a new trial granted upon the plaintiff’s paying the costs of the trial in the court below.

All concur.


author: Per Curiam.

text:
    Samuel H. Terry, App’lt, v. Leopold Rothschild, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Corporation—Stockholder—Liability.
    The issuance and return, unsatisfied, of an execution, on some other judgment than the one finally recovered against the corporation, does not satisfy the provisions of § 24, chap. 40 of 1848.
    Appeal from a judgment dismissing the complaint.
    In May, 1887, the I. Herman Manufacturing Company was incorporated, under chap. 40, Laws 1848 (the Manufacturing Act), and the acts amendatory thereof, with a share capital of $10,000, divided into 10,000 shares of. $1 each. The corporation was organized “ to manufacture Jersey, hand-knit, worsted goods, and anything connected therewith,” and was to exist during 50 years. The number of its trustees was fixed at three. Solomon Herman, Leopold Rothschild, and Isidor Herman were appointed trustees for the first year. The principal office or place of business of the corporation was located in the city and county of New York. Rothschild remained a trustee and the president of the corporation until 1890. January 14, 1889, the plaintiff recovered ajudgment by default against the corporation, in the city court of New York, for $1,829.52 damages and $18.55 costs (total $1,848.07), for six items of indebtedness which the corporation incurred to the plaintiff between November 8, 1888, and December 20, 1888. On the same day (January 14, 1889), tké plaintiff recovered a second judgment by default against the corporation, in the city court of New York, for $1,926.32 damages and $18.75 costs (total, $1,945.07), for four items of indebtedness which the corporation incurred to the plaintiff between November 23, 1888, and December 11, 1888. On the 14th of January, 1889, executions were issued on the judgments to the sheriff of the city and county of New York, who returned them, March 8, 1889, wholly unsatisfied. On March 9, 1889, this action was begun to charge the defendant, as a stockholder, pursuant to § 10 of said act, for the amounts of those judgments. May 10, 1889, the defendant answered herein. September 10, 1889, upon the motion of the defendant, the judgments were vacated, and it was permitted to defend the actions; but on appeal to the general term the order was, November 6, 1889, modified so as to permit the defendant to defend the actions, and the judgments to stand as security. The actions were subsequently tried on their merits, the plaintiff recovering, in the one represented by the judgment first mentioned, $930.35 damages and $262.46 costs (total, $1,192.81), and, in the action represented by the second judgment, $1,610.06 damages and $292.39 costs (total, $1,902.45). Judgments on these recoveries were entered December 13, 1889. No executions have been issued on the judgments last rendered, which represent the claims of the plaintiff against the corporation and its stockholders. The number of shares of stock owned by the defendant was not shown, bnt it was shown that he had paid $3,000 into the corporation for shares, and that only $4,000 of the capital (fixed at $10,-000) had been paid in by the shareholders. It was also shown that no certificate of the payment of the capital stock had been' made and recorded, as required by the eleventh section of the act, and that at some time a receiver had been appointed for the corporation ; but for what cause, when he was appointed, or whether the corporation was in the hands of a receiver at the time of the trial was not shown.

      John R. Abney, for app’lts; Mark M. Schlesinger, for resp’t.
   Per Curiam.

The judgments recovered January 14, 1889, which this action was brought to enforce against the defendant, as a stockholder, were not in existence at the time of the trial of this action (December 13, 1892), but they had been superseded by the two judgments entered December 13, 1889, after a trial of the actions on the merits. By the trial on the merits, the damages recovered by the first judgment, of January 14, 1889, were diminished by $899.17, and the damages recovered by the second judgment, of January 14, 1889, were diminished by $23.87. The plaintiff did not have the first two judgments modified so as to correspond with the recoveries, as he might have done; but, instead, lie elected to enter new judgments, which became the measure of the liability of the corporation to him. The corporation’s liability by the judgments of December 13, 1889, arose several months after this action was begun, and no executions have been issued on them, nor was it shown that they had not been paid. Section 24 of the act provides that a stockholder shall not be held personally liable for the debt of the corporation until a judgment has been recovered thereon, and an execution shall have been returned unsatisfied in whole or in part. The issuance and return, unsatisfied, of an execution on some other judgment, does not satisfy the statute. It must be on the judgment which is the foundation of the plaintiff’s suit. The judgment should be affirmed, with costs.

AILconcur.