text:
    MARCUS C. COOK and CYREL R. ALDRICH, Respondents. v. H. HORWITZ and others, Appellants.

      Misjoinder — one action upon two distinct undertakings — demurrer.

    Defendant Horwitz having been arrested in an action brought by the plaintiffs to recover the possession of certain personal property, an undertaking was given on the third of April by the defendants Horwitz, Freudenthal and Dodds, by which they bound themselves that the defendant should, at all times, render himself amenable to process, etc., and for the payment to the plaintiffs of such sum as might be recovered against him. On the twenty-seventh of May, another undertaking was given by the defendants Dodds and Jopha, in the form and to the effect required by section Sll of the Code.
    Plaintiffs having recovered judgment in the action, and an execution issued thereon having been returned unsatisfied, brought this action against all the sureties to both undertakings. Meld, that a demurrer, interposed by the defendant on the ground of an improper joinder of separate causes of action, was proper and should be'allowed.
    Appeal from an order overruling a demurrer to tbe complaint.

      John Berry, for tbe appellants.

      Anthony Ba/rrett and Olías. J. Patterson, for tbe respondents.
   Barnard, P. J.:

The plaintiffs brought an action in the Kings County Court against the defendant to recover specific personal property. It seems the defendant secreted the property, and an order of arrest was issued against him under subdivision 3 of section 179 of the Code, which authorizes arrests, as follows :

“ 3. In an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof.” Where an arrest is made under this subdivision 3, section 179, the defendant is required to give the undertaking required upon a redelivery of personal property to a defendant. (Code, 187).

This undertaking is provided for by section 211, and must be in double the value of the property, must have two sufficient sureties, and they must be bound “ for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant.”

On the 3d of April, 1875, the defendants Horwitz, Ereudenthal and Dodds executed an undertaking in the sum of “$1,400 that H. Horwitz shall, at all times, render himself amenable to the process of said court during the pendency of this action, and to such as may be issued to enforce the judgment thereon, and for the payment to the plaintiffs of such sum as may, for any cause, be recovered against the defendant.”

To entitle the defendant to a release from other arrests under sec-' tion 179 of the Code, the undertaking does not require the clause that the sureties would pay the sum recovered. To entitle himself to a release under subdivision 3 of this section a clause should have been added providing for a return of the property, and no liabilty was required for a failure upon the part of defendant to render himself amenable to process.

On the 27th May, 1875, the defendants Dodds and Japha exe- ■ cuted an undertaking as called for by section 211.

The plaintiff had judgment in the action for the delivery of the personal property, and for the recovery of $700, in case the same could not be had. Execution having been issued and returned unsatisfied, the plaintiffs bring this action, setting forth both undertakings, and asking judgment against the signers of both.

The point presented by the demurrer is whether the joinder is right.

In Wiles v. Suydam (unreported) it was held by the Court of Appeals that if two causes of action were set out in one complaint a demurrer would lie, although they were not separately stated. If, however, the complaint does contain several causes of action, and they are improperly united, the omission to state the cause of action in separate counts properly numbered does not deprive the defendant of the right to demurrer. (Goldberg v. Alley, not reported.”)

The case of Wiles v. Suydam is decisive of this in another particular. The action was against the defendant to recover a debt due the plaintiff therein from a manufacturing corporation. The defendant was a stockhdlder and trustee. The liability claimed against him was as stockholder under one of the manufactm-ing laws, and as trustee, for failure to make and file a report under another section. The defendant was liable to pay plaintiff’s debt under both sections. The Court of Appeals held that the actions could not be joined. “ The recovery of the debt is the object of the action, but a cause of action must have two factors : the right of the plaintiff and the wrong or obligation of the defendant.” There is no provision of law requiring both the undertakings set forth in the complaint. It is possible that because the first was defective the second was given, but assuming that both were properly given, I think they cannot be joined in one action. They are not made by the same parties, and, therefor, each does not affect all the defendants ; only one defendant signed both papers.

Japha had no interest in the first undertaking, and Horwitz and Freudenthal have none in the second. The grounds of liability are different. The first undertaking calls for amenability to process; the second does not. The liability arises under different papers executed at different times, and with different conditions and with different parties. There is no joint liability of all the defendants upon either paper. There is no allegation that the papers were given to effect a single purpose.

I think the order overruling the demurrer should be reversed, and the demurrer sustained, with leave to plaintiff to amend in twenty days on payment of costs.

Dykman, J., concurred. Gilbert J., not sitting.

Order overruling demurrer reversed, and demurrer sustained, with, leave to plaintiff to amend on payment of costs in twenty days.


source: Caselaw Access Project

author: Gilbert, J. :

license: Public Domain

text:
    CHARLES G. FRANCKLYN and another, Executor, etc., v. WILLIAM SPRAGUE and others.

      Factor selling under del credere commission — rights of assignee or recew&r of.

    Where a factor, acting under a del credm'e commission, fails, after having made advances to his consignor in the form of notes and acceptances, his receiver or assignee is entitled, as against the assignee and general creditors of the consignor, to retain in his hands the amounts arising from the sale of the goods, until such notes or acceptances are surrendered or destroyed.
    Appeal by the receiver and the plaintiffs in the above entitled action, from an order of the Special Term confirming the report of a referee.
    In 1873, Birchall was a manufacturer of goods at Philadelphia. Hoyt, Spragues & Co. were commission merchants at New York. Birchall made an arrangement with Hoyt, Spragues & Co. to consign goods to them for sale on commission. Hoyt, Spragues & Co. guaranteed sales, and had the right to sell on credit. Birchall had the right to draw bills on Hoyt, Spragues & Co., to an amount of about two-thirds the value of the goods consigned.
    On October 30, 1873, Hoyt, Spragues & Oo. failed. There were then outstanding and unmatured eleven acceptances of Hoyt, Spragues & Co., for $5,000 each, drawn by Birchall and negotiated in the ordinary course of business. Some appear to have been discounted by banks and some purchased in the market. Hoyt, Spragues & Co., or the receiver of the firm, have collected, since then suspension, $22,784.19, principally on account of BirchalPs goods sold before the suspension, upon terms of credit maturing thereafter.

      On October 24,1873, Birchall made ah insolvent assignment, under the laws of Pennsylvania, for the benefit of his creditors, to Jones. Birchall and Jones both reside at Philadelphia.
    In May, 1876, the holders of seven of these eleven drafts applied by petitions to this court, asking to have the receiver pay to them on account of their drafts the entire proceeds of Birchall’s goods. A reference was ordered, testimony taken, and the matter summed up by counsel. Upon such summing up the counsel for the contestants raised the objection that Birchall, or his assignee, and the holders of the other four drafts ought to be parties to the proceedings. Thereupon, in November, 1876, the assignee and the holders of ■ the four remaining drafts applied by petition, being represented by the counsel of the original petitioners, and were made parties to the proceedings. The holders of the last four drafts had already proved their claim against H., S. & Co., as general creditors, and received a dividend of ten per cent thereon.
    There are other creditors of Birchall, to a large amount, besides the holders of these eleven drafts.
    The receiver made a settlement of accounts with the assignee of Birchall, by paying him a balance of $384.13. This was a balance of an account in which Birchall was charged with the face of the acceptances, $55,000.
    The referee reported, upon these facts, that said sum collected as aforesaid, with interest at two and a-half per cent, amounting to $23,815.61, should be applied by the receiver, pro rata, upon said eleven drafts, to wit, $2,165.05 on each draft; the four petitioners who had already proved as general creditors reducing their proofs by that amount.

      George G. Holt, for Julliand, receiver, appellant.

      Addison Brown, for the petitioner, respondent.
   Gilbert, J. :

That the proceeds of goods consigned to a factor for sale on a del credere commission, in whatever form they exist, continue to be the property of the consignor, so long as such proceeds can be traced and identified, has been repeatedly adjudicated in this court. If the factor has made advances in cash he has a right to retain enough of such proceeds to reimburse bim therefor. If be bas made advances in tbe form of bis notes or acceptances, wbicb are outstanding, tbe proceeds may be retained until sucb notes or acceptances shall have been surrendered or destroyed. A receiver or assignee of a factor, who bas become insolvent, merely succeeds to bis rights, and is under tbe same obligation to restore to tbe consignor tbe proceeds of bis goods, wbicb are distinguishable, as tbe factor himself. These principles are manifestly just and equitable, and are well sustained by authority. (2 Kent Com., 623; Edw. on Fac., § 70, 71; 1 Am. Lead Cas., 480-490; German Bank v. Edwards, 53 N. Y., 544; Hidden v. Waldo, 55 id., 294.)

In this case tbe consignor has become insolvent, and bis assignee now seeks, in conjunction with certain creditors, to have tbe pro: ceeds of bis goods, which have been kept distinct, applied to tbe payment of drafts drawn by tbe consignor upon tbe factors, wbicb are in tbe bands of third persons. We think sucb a disposition of tbe proceeds in question ought to be made for tbe reasons assigned by tbe referee. Order affirmed.

Present — Barnard, P. J., Gilbert and Dtkman, JJ.

Order affirmed, with costs and disbursements.


author: Gilbert, J.:

text:
    SILAS A. UNDERHILL, Respondent, v. FRANK H. PHILLIPS, Appellant.

      Promissory note — complaint in action upon — consideration need, not be alleged.

    The omission of the words “for value received,” in a promissory note, is not material.
    In an action upon such a note, it is not necessary to allege in the complaint, that there was any consideration therefor.
    A description of the note is sufficient without an averment of the consideration.
    Appeal from an order of tbe County Court of Kings county, overruling a demurrer to tbe complaint herein.
    Tbe action was upon a promissory note. Tbe defendant demurred, on the ground that there was no allegation in the complaint showing any consideration for the note, and because it did not appear therefrom that the note contained any words expressing a consideration.

      G. B. Va/n Wa/rt, for the appellant.
    If a written contract be defective in its specification, it must be declared on according to its legal effect, and the deficiency supplied by the proper averments. ('Osborn v. La/wrmoe, 9 Wend., 135; Ooonl/y v. Anderson, 1 Hill, 519 ; GrammAs v. Olarh, 8 Cow., 35.)

      8. A. Underhill, respondent, in person.
    A promissory note imports a consideration, and it is unnecessary to state any in the pleading or to prove any upon the trial in the first instance. (Bank of Troy v. Topping, 13 Wend., 551; Goshen Twrnpihe, eta., v. Tlv/rti/n, 9 Johns., 211; Sa/wyer v. McTouth, 16 Barb., 350 ; Powers v. French, 1 Hun, 582.) It was not necessary that the complaint should allege that the note was delivered. (Ohwrohill v. Gardner, 1 Term it., 596; Peets v. Bratt, 6 Barb., 662; Keteltas v. Myers, 19 N. Y., 231.)
   Gilbert, J.:

The instrument set forth in the complaint is a negotiable promissory note. (1B. S., 168, § 1.) In this State such a note imports a consideration. A description of the instrument is sufficient, without an averment of the consideration. No consideration need be proved on the trial, and none, therefore, need be alleged in the complaint. The omission of the words “ for value received ” in the note, is not material. (1 Chitty’s PL, 293, n. 1; Kimball v. Huntington, 10 Wend., 675.)

The demurrer was properly overruled. Order affirmed, with costs'.

Present — Barnard, P. J., Gilbert and Dtktvtan, JJ.

Order overruling demurrer affirmed, with costs.


text:
    STEPHEN M. SHERWOOD, Administrator, etc., Respondent, v. THE AGRICULTURAL INSURANCE COMPANY OF WATERTOWN, NEW YORK, Appellant.

      Policy ofinsmcmce — transfer of interest by assured — when policy akmded by —Notice of loss — laches in presenting — excuses for.

    This action was upon a policy of insurance, issued hy the defendant, containing a condition that “if, without the written consent of the company first had and obtained, the said property shall he sold or conveyed, or the interest of the parties therein he changed in any manner, whether hy act of the parties or hy operation of law, * * * then, and in every such case, and in either of said events, this policy shallhe null and void. ” The assured died in 1872, and devised the property to his brother. The loss occurred in 1874 Reid, that as the interest of the assured in the property had ceased, and he had transferred the same to another person before the occurrence of the loss, no action could he maintained upon the policy.
    The policy provided that “in case of loss the assured shall give immediate notice thereof to the company.” No proofs of loss were given in this case, until after the expiration of five months. Reid, that the policy was thereby avoided.
    Appeal from a judgment in favor of tbe plaintiffs, entered upon tbe trial of tbis action by the court without a jury.
    This action was brought upon a policy of insurance issued by tbe defendant. Tbe policy provided that “ if any other insurance has been or shall hereafter be made upon the property hereby insured, not consented to by this company in writing hereon; or if, without the written consent of this company first had and obtained, the said property shall be sold or conveyed, or the interest of the parties therein be changed in any manner, whether by act of the parties or by operation of law; or the property shall become incumbered by mortgage, judgment or otherwise, * * * then, and in every such case, and in either of said events, this policy shall be null and void; ” and that “ in case of loss the insured shall give immediate notice thereof to the company, stating the number of the policy and name of the agent. Any neglect to comply with these provisions, or any misrepresentations, or concealment, or fraud, or false swearing, in any statement or affidavit in relation to loss or damage, shall forfeit all claim upon the company by virtue of this policy, and shall be a full bar to all remedies upon the same.”

      StarbueJc c& Sa/wy&r, for the appellant.

      M. L. Cobb, for the respondent.
   Gilbert, J.:

It appears from the findings of fact, that the assured died on or abont November 2, 1872; that the loss occurred August 27,1874; that the assured left a will, by which he gave the property insured to his brothers, and that each of the policies upon which the action is founded contains the following conditions, namely: “If any other insurance has been or shall hereafter be made upon the property hereby insured, not consented to by this company, in writing, hereon, or if without the written consent of the company first had and obtained, the said property shall be sold or conveyed, or the interest of the parties therein be changed in any manner, whether by act of the parties or by operation óf law, or the property shall become incumbered by mortgage, judgment or otherwise, then and in every such case and in either of said events, this policy shall be null and void.” The limitation of this condition to a change of title otherwise than by will, is not, we think, warranted. Nor does the language of the condition require a construction which renders the written consent of the insurer to the death of the assured, g, prerequisite to the continued operation of the policy. A more reasonable construction is, that such consent is necessary only in case of a sale or conveyance of the property insured, and that the prohibition of other modes of transfer is absolute. Such is the grammatical sense; and it is but just to infer that the parties to the contract did not intend to provide for obtaining a preliminary consent in the other cases mentioned in the condition. Consent of the insurer would afford complete protection to the assured and all claiming under him, although not provided for in the policy.

Such being the contract between the parties, and it being a perfectly valid and reasonable one, the defendant has a legal right to have it carried into effect. (Savage v. Howard Ins. Co., 52 N. Y., 504; Perry v. Lorillard Ins. Co., 61 N. Y., 214.)

There is no ambiguity in the language employed. If the interest of the insured in the ■ property insured should be changed in any maimer, whether by his own act onby operation of law, the policy should become null and void. When the loss occurred the property did not belong to the assured or his legal representatives, but had, by means of his act, been transferred to others. Plainly, therefore, such change in the ownership of the property annulled the policy, and, by the explicit terms thereof, the liability of the defendant under it wholly ceased. The case of Lappin v. The Charter Oak Ins. Co. (58 Barb., 325) is an authority directly in point, and we concur entirely with the reasoning and conclusion on this subject expressed in that case.

We are of opinion, also, that the court below improperly overruled the defense based upon the omission to give immediate notice of the loss.' Five months elapsed after the fire before the notice was given. A notice at that time was clearly insufficient to exonerate the plaintiff. (Inman v. Western Fire Insurance Co., 12 Wend., 452; McEvers v. Lawrence, 1 Hoff. Ch. R., 172.) The excuse offered was sufficient to exonerate the plaintiff from blame, but it cannot be taken as a legal substitute for the performance of the condition requiring “ immediate notice ” to be given. Such condition is a precedent one, the non-performance of which precludes a recovery by the plaintiff. Accident .or misfortune happening to the party who is bound to perform such a condition, unless caused by the adverse party, will not excuse performance. (Oakley v. Morton, 1 Ker., 25; Harmony v. Bingham, 2 id., 99; Tompkins v. Dudley, 25 N. Y., 272.)

The discrepancy between the actual value of the property, as agreed upon by the parties, and that set forth in the proofs of loss, is, certainly, strongly indicative of fraud; but as the case does not contain a finding on that subject, or the evidence relating to it, we think that question is not properly before us.

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Present — Barnard, P. J., Gilbert and Dtkman, JJ.

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


text:
    SAMUEL CRAIGHEAD and others, as Executors, etc., of SAMUEL N. PIKE, Deceased, Appellants, v. ROBERT PETERSON, Respondent.

      Power of attorney— construction of.

    Defendant executed a powei' of attorney, by which he appointed one Packard his “ true and lawful attorney for me and in my name, and place, and stead, to draw and indorse any check or checks, promissory note or notes on any bank in the city of New York, in which I have an account, and especially in the Irving National Bank of said city, and to do any and all matters and things connected with my account in said Irving National, or any other bank in said city which I myself might or could do,” etc. Held, that Packard was not authorized thereby to draw or indorse any check or note, except such as were payable at a bank in which the defendant had an account.
    Appeal from a judgment in favor of tlie defendant entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before wbom tbe action was tried.
    Tbe action was brought upon two promissory notes, made to tbe order of tbe plaintiffs’ testator. Tbe notes were made in tbe name of tbe defendant, tbougb tbey were not signed by bim personally but by bis son-in-law Abiel R. Packard, wbo claimed to be acting under a power of attorney, signed by tbe defendant, of wbicb tbe following is a copy:

      “Know all men Toy these presents, tbat I, Robert Peterson, of tbe city, county and State of New York, bave made, constituted and appointed, and by these presents do make, constitute and appoint Abiel R. Packard, of said city, my true and lawful attorney for me and in my name, place and stead, to draw and indorse any check or
    promissory note or notes
    checks A on, any bank in tbe city of New York, in wbicb I may bave an account, and especially in tbe Irving National Bank of said city, and to do any and all matters and things connected with my account in said IrviEg National, or any other bank in said city, wbicb I myself might or could do, in relation to my deposit account with said Irving National, or any other bank, giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof.
    “ In witness whereof, I have hereunto set my hand and seal the eighth day of October, in the year one thousand eight hundred and sixty-nine.
    “ROBERT PETERSON, [l. s.]
    “ Sealed and delivered in the presence of ]
    “ The words ‘promissory note or notes ’ first interlined. S'
    “Jno. S. Patterson.”
    The notes were both made payable at the Park National Bank of New York, at which bank defendant kept no account.
    The plaintiffs endeavored to show that the defendant had adopted or ratified the act of Mr. Packard, by the execution of a mortgage to secure their payment, which the defendant, by showing that the mortgage was obtained by misrepresentation and fraud, and that there was no intention on the part of the defendant to ratify the making of said notes, and an entire want of knowledge on his part that he was doing any thing having that tendency.
    This question was submitted by the court to the jury, who found for the defendant.

      A. C. Frcmsioli, for the appellants.

      W. 3. & D. M. Vcm Goit, for the respondent.
   Gilbert, J.:

We are of opinion that the court below correctly held that the notes in controversy were not within the power of attorney. That instrument is inartificial. Still the language used in granting the particular authority plainly imports a limitation of ttie power of the agent, to checks and notes payable at a bank in which the principal had an account, and the general language which follows does not affect that limitation. General language of that kind confers only such powers as are usual and proper for the execution of the particular authority. (North R. Bk. v. Aymar, 3 Hill, 262; Holtsinger v. Nat. Corn Exch. Bk., 6 Abb. Pr. [N. S.], 292.)

The question of ratification was one of fact. There was sufficient evidence that no ratification was made to require the submission of that question to the jury. Nor do we perceive any error in the admission of testimony. That to which the plaintiff now objects bore more or less directly on the question of ratification, and was pertinent to show the intent and object of the defendant and his wife in executing the mortgage, which is relied upon as an act of ratification, and, also, that they were not apprised of the purpose which the plaintiff sought to accomplish thereby. Ratification depends very much upon intent. Evidence which serves to illustrate that is always competent.

Judgment and order denying new trial affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment and order denying new trial affirmed, with costs.


author: Pratt, J.:

text:
    URIEL A. MURDOCK, Appellant, v. THE PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY, Respondent.

      Injunction — use of highway by railroad company — consent of owner thereto — effect of.

    In an action for an injunction, to prevent a railroad corporation from running its cars over a portion of a highway in front of plaintiff’s land, tie fee of which, subject to the public use, was in plaintiff, who had never received compensation for the use of said highway by the company, it appeared that the company was induced to construct its railroad upon said avenue by the express consent and license of the plaintiff. Held, that plaintiff was not entitled to an injunction.
    Appeal from a judgment in favor of the defendant entered at the Kings County Special Term, brought by an owner of land on Gravesend avenue, in Brooklyn, to enjoin and restrain the defendant from going with its railway through, over or across any portion of the said owner’s land, and for damages for acts in this regard already committed by defendant. The justice before whom the action was tried found, among others, the following facts:

      Tbat tbe defendant was a corporation duly organized and existing according to law; tbat tbe plaintiff was tbe owner of tbe lands and real estate described in tbe complaint, and tbat tbe defendant bas not made any compensation to tbe plaintiff for any portion of said land; tbat, under and in pursuance of chapter 670 of tbe Laws of 1869, and tbe acts amendatory thereof, and of chapter 531, Laws of 1873, and tbe acts amendatory thereof, an avenue known and called Gravesend avenue was opened, laid out and graded and regulated from Tenth avenue and Twentieth street, in tbe city of Brooklyn, to avenue X in tbe town of Gravesend, and was and bad been since on or about June 1, 1875, an existing public highway of tbe towns of Flatbusb, New TJtrecbt and Graves-end; tbat said avenue constituted a part of tbe route of tbe defendant’s raiboad, and tbe defendant’s road was built upon, and operated on and over said highway in said towns to avenue X, and tbe defendant was authorized by law to construct and operate its railroad with steam power over and upon said avenue, and that said avenue ran through tbe property of said plaintiff, described in tbe complaint; tbat commissioners were duly appointed pursuant to law and tbe statutes above referred to, to open, lay out, grade and regulate said Gravesend avenue, and tbat said commissioners did proceed to lay out, open,'regulate and grade said avenue, and to make awards to owners of lands taken for such avenue, and awards for all damages sustained by tbe owners by reason of tbe taking of said lands for said avenue; tbat tbe said commissioners did make an award to tbe plaintiff for such land so taken from him, and for his damages by reason of such taking, which award bad been confirmed by this court, and tbe plaintiff bad received tbe same; tbat tbe defendant entered upon tbe lands in said avenue with tbe express permission and consent and under a license from tbe plaintiff ; tbat, induced by tbe express consent and license of tbe plaintiff, tbe defendant did construct its raiboad in and upon said avenue, and bad expended large sums of money in said construction. (Tbe plaintiff in bis evidence stated tbat be bad never consented to tbe use of tbe road by tbe defendant.) As conclusions of law upon tbe foregoing facts, tbe justice decided: 1. Tbat tbe plaintiff’s complaint be dismissed. 2. Tbat tbe defendant recover of and from tbe plaintiff its cost of this action, including extra allowance of $100.

      Chittenden <& Fiero, for the appellant.
    That under special act of the legislature, chapter 531, Laws of 1869, and the act amendatory thereof, under which defendant claims to be authorized to appropriate Gravesend avenue for its railway, an easement only was taken for the public use; the fee remains in plaintiff, subject to the right of the people to use the land as a street or highway. ' Therefore, defendant could not take possession of this street or highway without making compensation to the plaintiff. (The Washington Cemetery v. The Prospect Park and Coney IslcndR. R. Co. [7 Hun, 655]; WilUamsr.K. Y. C.R. R. Co., 16 N. Y., 97; Masonr. FT. Y. C. R. R. Co., 21 id., 658; Carpenter v. Oswego R. R., id., 655; Wager v. Troy Union R. R., 25 id., 526 ; Broistedt r. Southside R. R., 55 id., 220.) The laying out of a highway gives the public a mere right of passage with the powers and privileges incident to such right, and the owner of the soil over which the road passes is not thereby divested of his title to the land. (The Trustees of the Presbyterian Society in Waterloo v. The Aub. and Roch. R. R. [opin. by Nelson, Ch. J.], 3 Hill, 567; Kelsey v. King, 33 How., 39 ; Crcdg v. Roch. and B. R. R., 39 N. Y., 101.) The legislature must expressly provide for the taking of the fee, or the road must pay damages consequent on the additional burden to property owners. (Laws of 1813, 2 Rev. Stat., 109; People v. Kerr, 27 N. Y., 188.) The following decisions are against the right claimed by defendant: Miller v. The Auburn and Syracuse RaMroad Compcmy (6 Hill, 61); Mumford v. Whitney (15 Wend., 380); Bridges v. Purcell (1 Dev. & Batt., 192; see, also, 1 Chit. Gen. Rr., 336-310). In HewUns v. Slvippan (5 Barn. & Cress., 221) it was held that an easement could not be granted byparol license. (Eggleston v. Ff. Y. and Harlem R. R., 35 Barb., 162; Mumford v. Whitney, supra / Browne on Statute of Frauds, 29, 30; Cook v. Stearns, 11 Mass., 533.) A mere license is personal to the licensee, and is not assignable. (Mendenhall v. Kl/inck, 51 N. Y., 216; Gerard on Titles to Real Estate [2d ed.], 662, and authorities there cited; Hillard on Real Prop., 16; Babcock v. Utter, 1 Keyes, 397, and 32 How., 139; 1 Wash. Real Prop., Ill; 1 Sandf. Oh., 72.)

      John H. Bergen, for the respondent.
    The license by the plaintiff to the defendant to construct the road is proved and is admitted by tbe plaintiff. This constitutes a perfect defense. (Ma/rble v. Whitney, 28 N. Y., 297; People v. Goodwin, 1 Seld., 568; Selden y. Pel. and Hud. Oanal Go., 29 N. Y., 684; Muller y. Auburn, etc., B. B., 6 Hill, 61; Eggleston v. JSr. Y. and H. B. B., 35 Barb., 172 [opin. per Emott, J.].) Tbe right granted by the license to the defendant was more than an easement; it was a qualified interest in the land, or a right of profit a prendre. {Senhouse y. Christian, 1 Term. B., 560; White y. Qrcmford, 10 Mass., 188; Goodrich y. Bwbank, 12 Allen [Mass.], 459 ; Bowen y. Gormor, 6 Cush., 137; Bailey y. Stephens, 12 Com. Bench [N. S.], 110; Muskit v. Hill, 35 Eng. Com. L., 371, 694; Borst y. Empie, 1 Seld., 33, and cases cited.) It is clear from all the cases that until the license is revoked no action will lie. {Selden v. H. and P. Gandí Co., 29 N. Y., 639.) The statute of frauds does not apply to such a license. {People v. Good/win, 1 Seld., 568.) The road haying been constructed under the license of plaintiff, he is estopped from denying the legality of the act. {Manble v. Whitney, 28 N. Y., 307.) Under the act of 1873 the land was taken concurrently for the two uses of co highway and rañl/road, and the award made for all the purposes of the act, which plaintiff has accepted. {In the Matter of the Prospect Pa/rk and O. I. B. B. Co., Ot. of App. [opin. of Eolger, J.].)
   Pratt, J.:

It is found by the court at Special Term that the acts of defendant, now complained of, were done in accordance with the expressed wish of the plaintiff, and that finding was warranted by the testimony. Upon that state of facts no trespass was committed.

Haying induced the defendants to expend large sums of money in building the road, it would be contrary to all principles of equity to enjoin its operation.

The judgment must be affirmed with costs.

Present — Barnard, P. J., Pratt and Dykman, JJ.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff in Error, v. JACOB HARTMANN, Junior, and GEORGE FISHER, Commissioners of Excise of the Town of Eastchester, Defendants in Error.

      Mvcise lam — petition of twenty freeholders— Hotel and tcmern license.

    The provisions of section 6 of chapter 628 of 1857, requiring a petition of twenty freeholders as a prerequisite to the granting of a license for the sale of spirituous liquors, is repealed hy section 4 of chapter 175 of 1870, as amended hy section 2 of chapter 549 of 1873.
    The provision of said act, forbidding the granting of licenses to persons not having sufficient ability to keep a tavern, and not having the necessary accommodations to entertain travelers, is still in force.
    Appeal from a judgment of the Court of Sessions of Westchester county in favor of the defendants in error, entered on a motion to quash an indictment found against 'them in said court, as commissioners of excise of the town of Eastchester, for granting licenses contrary to the provisions of section 6 of chapter 628 of 1857.

      Wm. H. Yarn Gott, for the plaintiffs in error.

      W. Bowrlm Ooohrcm, for the defendants in error.
   Dykman, J.:

The defendants were indicted for improperly granting licenses for the sale of spirituous liquors, as commissioners of excise of the town of Eastchester, in Westchester county. In various ways and in different counts in the indictment the defendants were charged with granting license to various persons to sell spirituous liquors, to be drank on the premises, without the presentation of a petition signed by twenty freeholders of the State residing in the election district where the tavern was proposed to be kept; second, with granting license to sell spirituous liquors, to be drank on the premises of the person licensed, in cases where such person had not sufficient ability to keep a tavern, and had not the necessary accommodations to entertain travelers; and third, with granting licenses to persons who were not of good moral character.

The district attorney obtained permission to enter a nolle prose qui upon tbe counts wbicb charged tbe last offense, and then, upon motion of tbe defendants, tbe court quashed tbe indictment in respect to tbe counts wbicb charged tbe two first-named offenses and gave judgment for tbe defendants.

Tbe first question presented here is, has section 6 of tbe Laws of 1857, chapter 628, been so far abrogated by section 4 of chapter 175 of tbe Laws of 1870, as amended by section 2 of chapter 549 of tbe Laws of 1873, as to dispense with'the necessity of a petition by twenty freeholders as a prerequisite to tbe granting of a license for tbe sale of spirituous liquors to be drank on tbe premises. In tbe case of tbe People v. Smith (9 Hun, 446), in tbe fourth department, it was held by tbe G-eneral Term that tbe provisions of tbe law were so abrogated, and that license for tbe sale of spirituous liquors to be drank on tbe premises, might be granted by tbe commissioners of excise to any person of good moral character approved by them on tbe written application signed by tbe applicant only.

It is not intended to assert that any such or similar language was used by tbe court in tbe opinion in that case, but simply that such is tbe doctrine and teaching of that case. Now, this decision has since been reversed in tbe Oourt of Appeals, but not upon this point; and, as we understand tbe opinion, it is to tbe effect that no petition of freeholders is now necessary. Even if we were not bound by this decision, we should have no hesitation in bolding tbe same way. As to these counts in this indictment, therefore, wbicb charged these defendants with this offense, tbe judgment of tbe court below is right.

Now, as to tbe second question, this indictment contains two counts which charge, substantially, that these defendants bad granted license to various persons to sell strong and spirituous liquors, who bad not sufficient ability to keep an inn, tavern or hotel, nor the necessary accommodation to entertain travelers.

These allegations bring this case dh*ectly within tbe principle decided by tbe Court of Appeals in tbe case of The People v. Smith. There tbe defendant was indicted for selling strong and spirituous liquors in quantities of less than five gallons at a time, to be drank on bis premises, without having a license therefor as a hotel-keeper. Tbe jury found him guilty. There was no question but wbat be did sell in tbe quantities named, to be drank on bis premises, nor but that be did so without having a tavern license. His defense was, however, that be bad license from tbe excise board to sell on bis premises in tbe quantities named, under and in pursuance of tbe law of 1870, as amended by tbe law of 1873. Tbe Court of Appeals held that this was not sufficient, and reversed tbe decision of tbe General Term, and affirmed tbe conviction.

This seems to be decisive of this case; and we bold, in accordance with it, that tbe tenth and eleventh counts in this indictment charged an offense which was indictable.

Tbe court below was in error in quashing tbe indictment as to these two counts, and tbe judgment must be reversed.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment reversed and new trial granted.


author: Dvkman, J.:

text:
    In the Matter of the Petition of BETSEY A. MERRILL v. JOHN J. ANDERSON, Receiver of the Continental Life Insurance Company.

      Settlement of loss with inswramee company — check of company — withdrawal of money by the receiver of the company, before presentation of the check.

      A life insurance company settled a loss accruing under a policy issued by it, and delivered a check for the amount to the claimant, drawn upon the United States Trust Company, where the company then had a deposit largely in excess of the amount thereof. The claimant indorsed, upon the back of the check, a receipt in full for all demands under the policy. Before indorsement and presentation of the check a receiver of the company was appointed, who withdrew all the funds from the trust company. Reid, that the claimant was entitled to have the amount of such check paid by the receiver out of the funds so withdrawn.
    Appeal from an order made at tbe Special Term, directing tbe receiver of tbe Continental Life Insurance Company to pay to tbe petitioner tbe amount of a ebeck drawn by tbe company prior to tbe appointment of tbe receiver.

      Elliott F. Shepard, for the petitioner.
    The draft of the Continental Life Insurance Company was on a particular fund in the United States Trust Company (not a banker, but a trustee), and the draft operated as an equitable assignment of $7,820.67 of those funds to the petitioner. (Yreeland v. BT/unt, 6 Barb., 182; Hosack v. Rogers, 6 Paige, 415-429.) In equity, an order given by a debtor to his creditor upon a third party, having funds of the debtor to pay the creditor out of such funds, is a binding equitable assignment of so much of said fund. {Hall v. Buffalo, 1 Keyes, 193 ; Burn v. Carvalho, 4 M. & C., 690; Morton v. Hafflor, 1 Hill, 583-585.) Such a draft, without acceptance, is an assignment, and good against the bankruptcy assignee of drawer. ( Yates v. Groves, 1 Ves., Jr., 280.) No particular form of words is necessary to constitute an assignment. Ad intention to surrender all control over the fund is sufficient. (.Dickenson v. PMllips, 1 Barb., 454.) It can be enforced, even though the drawee refuse acceptance. {Lett v. Morris, 4 Sim., 607.) Such a draft is a valid, equitable assignment of the fund pro tanto. {Bradley v. Root, 5 Paige, 632; Re Alderson, 1 Mod. R., 55; Clark v. Mauran, 3 Paige, 373.) An order drawn by a creditor on his debtor is a prima facie evidence of an assignment of the debt pro tanto. {McEwen v. Johnson, 7 Cal., 258.) Any act amounting to an appropriation of a debt, will constitute an assignment of it. No particular form of transfer is essential. (Wiggins v. McDonald, 18 Cal., 126.)

      Sewell <& Pierce, for the receiver.
    A check is not an assignment of the fund on deposit in the hands of the banker. It is not even an equitable assignment. The holder of a check cannot sue the banker, and has no claim on the fund in case of refusal to pay. {Bank of Republic v. Millard, 10 Wall., 152; Chapman v. White, 2 Seld., 412; Etna v. Fourth Hat. Bk., 46 N. V., 82; Bellamy v. Majorilanks, 8 E. L. and Eq., 523 ; Dykus v. Leather Bk., 11 Paige, 612; Harris v. Clark, 3 Comst., 93; CowperthwaAte v. Sheffield, 3 N. Y., 243; Winter v. Drury, 5 N. Y., 525 ; Schneider v. Lrving Bk., 1 Daly, 500.)
   Dvkman, J.:

The Continental Life Insurance Company insured the life of Albius C. Merrill in the sum of $10,000, payable at his death to the petitioner, Betsey A. Merrill. The insured died in September, 1876, and the company adjusted the loss with the petitioner at $7,820,67, and delivered to her a check for that sum, of which the following is a copy :

“(No. 792.)

“ Continental Like Insurance Company oe New Tore, ) New Tore, October 14, 1876. J

“ $7,820.67. United States Trust Oonvpcmy. (Claim 14,214.)

“ Bay to the order of Betsey Ann Merrill seventy-eight hundred and twenty dollars and sixty-seven cents.

“CONTINENTAL LIFE.

“R. C. Frost,

“Actmg President.

“ J. P. Rogers, Secretary.

$7,820.67.”

On the back of this check was the following indorsement:

“ This check is accepted as full payment of all claims on policy No. 14,214.

“MERRILL.”

At the time this check was drawn, the insurance company had $21,074.94 on deposit with the trust company, but before the check was indorsed by the petitioner and presented for payment, a receiver of the company had been appointed, and the funds had been withdrawn, and when the check was presented for payment it was refused for want of funds. Now the petitioner asks to have this sum paid to her by the receiver, and an order has been made at Special Term that it be so paid. From that order an appeal is now taken, and we have to determine whether this money which was so appropriated to the payment of this claim can be taken by the receiver and placed in the common fund, and used for the payment of the debts of this insolvent corporation, and the petitioner thus be compelled to take her share of her claim the same as the other creditors.

The statement of the case shows that the company had settled with the petitioner and adjusted her claim, and had a special deposit with the trust company to secure that settlement, which was intended to be appropriated by tbe check drawn against it. An equitable claim upon this fund was thus created in favor of tbe petitioner, and tbe receiver took tbe fund subject to tbis equity. In fact, tbe receiver never should have withdrawn tbis money from tbe trust company. Tbe insurance company was bound by tbe settlement, and be was bound in tbe same manner, and to tbe same extent. After tbe delivery of tbe check to tbe petitioner, both equity and fair dealing would forbid tbe withdrawal of tbe fund out of which tbe check was to be paid, and we cannot give our sanction to such a course of conduct.

Tbe order appealed from must be affirmed, with costs.

Present' — • Barnard, P. J., and Dyeman, J. Gilbert, J., not sitting.

Order affirmed, with costs and disbursements.


author: DyeMAN, J. :

text:
    EDWARD H. SEAMAN, Respondent, v. LUTHER B. LEE and GEORGE W. LEE, Appellants.

      Stream — right of mm' try riparian owner — pollution of — remedy of party

    Plaintiff built three ponds, for hatching and rearing trout, in a- stream running-through his land, which entered the same from the land of Hicks. Defendants dug a ditch from the rear of certain dwellings, erected by them, through Hick’s land to the stream, and discharged drainage and waste water therein, whereby plaintiff’s trout were killed. Meld, that he was entitled to an injunction restraining the defendants from further corrupting and polluting the said stream.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
    Tbe action was brought by tbe plaintiff to restrain tbe defendants from using a ditch, that they bad dug to carry off waste water from then’ bouses into a brook that fed tbe trout ponds of tbe plaintiff, and from fouling and corrupting tbe said stream; and also to recover damages for tbe loss of trout, occurring by the above acts.

      Scmwel D. Morris, for tbe appellants.

      Wm. H. Onderdonk, for tbe respondent.
   DyeMAN, J. :

Tbe facts established by tbe testimony and found by tbe referee in this action are, that tbe plaintiff is tbe owner of a farm of land in Queens county; that a stream of water comes on to it from tbe land of William S. Hicks, on tbe north, and flows through it; that tbe plaintiff has constructed three ponds on bis land on tbe line of tbe stream for tbe purpose of breeding, propagating and growing trout, and has stocked each of these ponds with trout; that tbe defendants are tbe owners of land adjoining tbe land of Hicks, near to this stream, and have dug a ditch from tbe rear of their dwelling-house to this stream; that the'* drainage and waste waters, containing refuse matter, were carried through this ditch in tbe summer of 1874, into this stream, and by this stream into tbe plaintiff’s ponds, and corrupted tbe waters thereof and caused tbe death of 720 trout in these ponds, which belonged to tbe plaintiff, and which were worth fifty-six dollars; that tbe defendants at tbe time of'the commencement of tbe action were using the ditch or drain for conveying off waste water, which contained unwholesome and injurious substances, and thus polluted and corrupted the waters of this stream and rendered the same impure and unwholesome.

The law applicable to this state of facts is not open to uncertainty.

The plaintiff has no property in the waters of this stream as it passed along through his land, but be had a right to its use; he had a right to have it come into his land pure and in its natural course and way.

As water, like air, is an element in which no person can have an absolute property, yet, it is also, like air, free for the use of all, and the law has been diligent and rigorous to maintain it in its natural purity; and any person who does any act to it is liable to an action for damages, and may be restrained from doing so by injunction.

The referee has found, upon sufficient evidence, that the defendants have fouled this stream of water and that the plaintiff has sustained damages thereby.

The judgment must be affirmed, with costs.

Present — BaeNArd, P. J., Gilbeet and DtemaN, JJ.

Judgment affirmed, with costs.


author: DykMAN, J.: •

text:
    BENJAMIN T. HALL, Respondent, v. JAMES PETTIGROVE, Appellant.

      Mechanic’s lien — effect of mortgage taken to semre sarnie debt..

    Plaintiff entered into an agreement witli defendant, who was in possession of land under a-contract, to repair a building thereon for $3,286, and took a mortgage upon other land to secure said sum. Upon the completion of the work he filed a mechanic’s lien, foreclosed the mortgage, realizing thereby $1,025, and entered a personal judgment for deficiency.
    In an action to foreclose the lien, it was claimed that by taking and foreclosing the mortgage and entering the judgment he had waived his right to the lien. Held, that he was entitled to pursue all the remedies he had, until he realized the amount of his claim.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.
   DykMAN, J.: •

Tbis is an appeal from a judgment entered upon tbe report of a referee, in an action to foreclose a mechanic’s ben. Tbe facts of tbe case are undisputed. , They are, that tbe defendant Pettigrove was in possession of tbe premises under a contract of purchase, and made a contract with tbe plaintiff to repair tbe building thereon for $3,286, and gave tbe plaintiff a mortgage upon certain other land to secure tbe amount. After tbe work was done, tbe plaintiff filed tbe necessary notice to effect bis lien, and then foreclosed bis mortgage, and reabzed from it $1,025, which be deducted from tbe contract-price for tbe repairs.

In tbis action, tbe defendant claims that tbe mortgage must be regarded as payment, or, at all events, a security of a higher nature than tbe original contract debt, and must be held to extinguish it.

It appears also in tbis case that there was a judgment entered against tbe defendant, Pettigrove, in tbe foreclosure suit, for deficiency for $2,678.86, and be now claims that as tbis is a ben upon tbe premises for tbe full amount due on tbe contract, and as tbe plaintiff has elected to take tbis personal judgment for tbe deficiency, tbe ben must be held to be extinguished.

This last position assumes that the judgment is a lien on this land, wbicb is not true, as tbe defendant bas not tbe title.

Tbe judgment in tbis action to foreclose tbe mecbanic’s lien gives more power and greater rights than a simple money judgment, and we think be is entitled to pursue all tbe remedies be bas until be realizes bis claim.

Judgment affirmed, witb costs.

Present — DyikmáN and Pbatt, JJ. BaeNAed, P. J., not sitting.

Judgment affirmed, witb costs.


author: Peatt, J.

text:
    WILLIAM S. VERPLANCK and others, Executors, etc., of JOHN. P. DE WENT, Deceased, Respondents, v. ADELE DE WENT and others, Appellants.

      OonsirucMon of will— advameement — when interest commences to rim on.

    Appeal from a judgment entered upon tbe trial of this action at the Special Term.
    The action was brought to obtain the construction of a will.
    The court at G-eneral Term said: “We see no reason for disturbing the judgment at Special Term. The eighth clause of the will gives to Erancis A. He Went, the testator’s son, one equal share or tenth part of his estate. The ninth clause charges him with an advancement of $5,000, £ to go in diminution ’ of his share.
    The first codicil provides that Erancis A. He Went having died, that said tenth part £ shall be held in trust by the executors,’ and the income of £ this share ’ be used for the benefit of his widow and children, until they shall arrive at twenty-one, and then to pay over £ said one-tenth part ’ to said children as they arrive at the age of twenty-one. The intention of the testator is manifest. He desired simply to bequeath the share Francis would have received by his will, viz.: one-tenth part, less the $5,000 advancement, in trust for the benefit of his widow and children.
    There is no inconsistency between the will and the codicil upon the construction given to it by the judgment below. Any other construction would be forced and unnatural, and would make an inconsistency where none exists.
    The advancement, by the ninth clause of the will, is to go in ■ diminution of the respective shares ‘ on the settlement of my estate.’
    This must be held to mean, when my death and the probate of my will places my estate in a position of settlement.
    The advancement bears interest from the time of the probate of the will. Unless specially directed by the will, advancements do not bear interest, during the life of the testator, from the time of the making of the advancement. But in charging the advancement, it is just as though the testator had said: ‘A legatee under my will owes my estate so many dollars, and it is to be collected out of his legacy, together with interest thereon from the probate of my will.’ It stands upon the same footing as any other debt due the estate; the time the debt is due being fixed as the day the will takes effect, its collection being deferred to the date of distribution of the legatee’s share. It forms a portion of the assets of the estate, and the legatee receiving his share of it upon the distribution of his share.
    The judgment must be affirmed.”

      L. Hoyt, for the appellants. 0. Wheaton, for the respondents.
   Opinion by

Peatt, J.

Present — BaeNAbd, P. J., Peatt and DtemAN, JJ.

Order affirmed, with costs and disbursements.


author: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. RUFUS HATCH and others, Appellants, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD COMPANY and others, Respondents.

      G hap. 165 of 1843 — Transfer agents of foreign corporations — exhibition of ti'ansfwbook and list of stockholders by — Bight'of corporators to inspection of books and papers of empm’ation.

    Chapter 165 of 1843, entitled “An act to compel transfer agents of foreign corporations to exhibit a list of the stockholders thereof,” is only applicable to the transfer agents, and not to the officers of the corporations, and a mandamus to compel the exhibition of the transfer-books should be directed to such agents only.
    This court has power to compel, by mandamus, the exhibition of the transfer-books of a domestic corporation containing the names of the stockholders, at any time when the exercise of such power is shown to be necessary to preserve and protect the interests of the stockholders therein.
    The reasons for granting the writ should, however, be clear and cogent.
    The Lake Shore and Michigan Southern Eailroad Company is a domestic corporation.
    Appeal from an order of tbe Special Term, denying a motion for a peremptory manda/rrms.

    This was an application for a mandamus to compel tbe respondents to exhibit to the relators the transfer-book and list of stockholders of the Lake Shore and Michigan Southern Railroad Company.
    The application was made on the ground that the board of directors of the Lake Shore and Michigan Southern Railroad Company were mismanaging that road, and sacrificing its interest to that of other roads in which they were largely interested, the relator alleging “that the object of deponent and his associates in demanding the list of shareholders is to communicate with them immediately, so that the shareholders may have an opportunity to co-operate and consult together as to using proper means to protect them interests and the property of the company from further depreciation.”
    The allegations of mismanagement were denied by respondent.

      A. J. Vcmderpoel and Robert Sewell, for the appellants.
    The several corporations consolidated into the one now here did not, by the act of consolidation, become New York corporations. They merged into a corporation which is a New York corporation, an Ohio corporation, an Indiana corporation, an Illinois corporation, and it is each at the same time, and none of the duties owed by the corporations of the several States are released by the consolidation. (Paine v. Lake Erie and L. Co., 31 Ind., 283; Miller v. Lancaster, 5 Golden [Tenn.], 514; Cobtnibus R. R. Co. v. Powell, 40 Ind., 37; Prouty v. M. S. R. R.' Co., 53 N. Y., 363; JDermistovn v. N. H. R. R., 1 Hilton, 64.) Rut apart from the statute and independent of any rights conferred by it, a member of a corporation has, by the common law, the right to an inspection of the books of the corporation for the purpose of establishing or maintaining his rights as a member of the corporation. {Rex v. Shelley, 3 Term R., 142; Rex v. Babb, id., 580; Ha/rrison v. Williams, 3 Barn. & Cress., 162; Rogers v. Jones, 5 D. & R., 484; Grant on Corporations, 311; People v. Cornell, 47 Barb., 329 ; Hubert v. Ashbwrner, 1 Wils., 297; Dillon on Munic..Corp., § 240.) It may be argued that these citations merely apply to public or municipal corporations. It is, however, well settled that the power of courts over the records of corporations* extend to private corporations for the protection of the members thereof, and that in this respect there is no distinction whatever, between the rights of corporators to an inspection of the records. (Am. Co. v. Ha/oen, 101 Mass., 398; State y. Goll, 3 Yroom., 285; Hatoh v. City B., 1 Rob. [La.], 410; Bex y. Merchant Tailors’ do., 2 Barn. & Ad., 115; Cotheal y. Brown, 1 Selden, 563; Angel & A. on Corp., 512; Imp. Co. y. Clarice, 1 Barry, 95 ; 2 Starkie’s Ev., 136; Bex y. Bucblngham, 8 B. & C., 315; 3 Ld. Raymond, 303; Grey y. Hopkins, 1 Mod., 129; 2 Ld. Raymond, 851; Foster v. BIc. of Eng., 15 Law J. [N. S.], Q. B., 212; Cockburn v. Union B7e., 13 La. Ann., 289; Bex y. Hostnnen of Newcastle, 1 Strange, 1223; Bex y. Trustees, 5 Barn. & Adol., 918; Begina y. Tealey, 8 Jur., 496; People y. Wallcer, 9 Mich., 328 ; St. Pukds Church y. Slade, 1 Cush., 226; Bex y. Wildman, Strange, 819; Anon., 1 Barn. 3L B., 402; Pratt y. Meriden Co., 35 Conn., 36.) The writ of mandamus is the appropriate remedy. It lies to compel the exercise of corporate functions in cases where the law affords no other adequate or specific remedy. (High on Ex. Remedies, §216; People y. Ins. Co., 19 Mich., 392; State y. Bd. Trustees, 4 Nev., 400; Fireman Y.Mayor, 23 Md., 291; Bex y. Windham, Cowp., 311; Bex y. Cambridge, Burr, 1641; King v. Bland, 1 Md., 35; Queen y. Kendall, 1 Ad. 6 E. [N. S.], 366; Bichmond v. Pa. Ins. Co., 34 How. Pr., 195; Hatoh y. FT. W. B. B. Co., Mss.; Cotheal y. Brown, 1 Selden, 562; People y. Throop, 12 "Wend., 183.) It is true that the statute gives a remedy in damages, but that is neither adequate or specific. Our needs are to have the right which the law gives us, not the alternative of damages. Where an express remedy is given by statute, the wilt will not he, but the remedy, by an action for neglect of the duty, does not surpersede the remedy by mandamus, since such an action cannot compel the performance of the specific duty required. (High on Ex. Remedies, § 11; Fremont v. Crippen, 10 Cal., 211; Etheridge v. Hall, 1 Port., 41; In re Trustees of Williamsburgh, 1 Barb., 34; King v. Banle of England, Doug., 524.) It is well established that the directors of a corporation are trustees of the stockholders. (Podge v. Woolsey, 18 How., 331; 21 Wall., 616 ; Mechanics’ BTs. v. Pe Bolt, 18 How., 330; Coleman’s Admrs. y. Second Ave. B. B. Co., 38 N. Y., 202.) We then appear here as the real owners of the property which has been placed in the hands of these directors as trustees, and ask the court to establish our right to inspect the books and documents relating to the property, which is the subject of the trust. (Wynne v. Roj/mberstone, 27 Beav., 421; Devanes v. Robinson, 21 id., 42; Talbots. Mcvrshfield, 2 Dr. & Sm., 285 ; Spvngett v. Daslmood, 2 G-f., 521; Rcvrd/wick v. Vernon, 14 Yes., 510.) The writ lies as well against a foreign corporation as a domestic one. (Commormealth v. Denison, 24 How., 66; Kendall v. TJ. S., 12 Pet., 527; Oilman v. Bassett, 33 Conn., 298; Aubery v. Bevmens, 6 Tex., 457; Bcvrnett v. <7/¿. R. R., 4 Hun, 114; Prouty v. iA & R. R., 1 id., 665.)

      Eoa/rts, Southmcvyd c§ Choate, for the respondent.
    The corporation is a domestic one. (Ang. & Ames on Corp., § 633; A. de W. Sprague v. The Rcvrt. Prov. and Fish. R. R. Co., 5 R. I., 233.) At the common law the stockholder had no absolute right to the examination of the books of the corporation, of which he was a member. The privilege of examining the books depended upon his ability to show to the court, to which application was made, that a special occasion had arisen, which rendered it proper that he should have an opportunity to make such an examination, in order to enable him to perform some duty which devolved upon him as a corporator. (Taylor on Ev., § 1346; Rex v. Merchant Tailors’ Co., 2 B. & A., 115; Imperial Oas Co. v. Cla/rke, 7 Bing., 95; Bvrm., Bods, and Thames Radhocvy Co. v. White, 1 A. & E. [N. S.], 282; 2 Phillips on Ev., 314; The King v. The Bank of England, 2 B. & A., 620; The People v. Walker, 9 Mich., 328.)
   Davis, P. J.:

The act entitled an act to compel transfer agents of foreign corporations to exhibit a list of the stockholders thereof ” (chap. 165 of the Laws of 1842; 3 Edmund’s Gen. Stat., 677) is applicable only to the transfer agents, in this State, of foreign corporations. The duties thereby created and imposed are put specifically upon such transfer agents, and not upon the corporations, or officers of the corporations, which they represent. And it is only upon such transfer agent, or his clerk or officers, that the forfeiture provided for by the second section of the act is imposed. Proceedings, therefore, for a writ of onandamus to compelthe exhibition of the transfer-books of such foreign corporation, and also a list of the stockholders thereof,” can properly be taken against sunh trans-for agent only; for his neglect or refusal to perform the duties imposed by that act is not the neglect of the corporation. So far as this proceeding is intended to be brought under the act of 1842, it should have been directed against the Farmers’ Loan and Trust Company for their alleged violation of duty. The words “foreign corporation, or corporation existing beyond the jurisdiction of this State,” as used in that act, are entirely synonymous, and have the same signification; for the words “ existing beyond the jurisdiction of this State,” as used in the act, mean simply, having a corporate existence from authority outside of the State.

The question of parties, however, is not a very important one, because if the court should be of the opinion that the Lake Shore and Michigan Southern Railroad Company is a foreign corporation, so that their transfer agent is subject to the provisions of the act of 1842, there would be no difficulty in directing the writ of mandamus to such agent, and dismissing the application as to all other parlies. But we think it entirely clear that it is a domestic corporation created under the laws of this State, and subject to all the duties and obligations imposed by our laws upon domestic corporations.

In respect to domestic corporations, the Revised Statutes (vol. 1, 601 [Edm. ed., p. 558, § 1]) make special provisions requiring that the book containing the names of the stockholders in any such company, shall, at all reasonable times during the usual hours of transacting business, be open to the examination of every stockholder of such company for thirty days previous to any election of directors, and imposing upon the officers having charge of such books, who shall refuse or neglect to exhibit them, or submit them to examination, a penalty to be recovered by the injured party.

The object of this statute is quite apparent. It intends to put it in the power of every stockholder, for thirty days previous to any election of directors, to ascertain the names of all stockholders of the company, so that he can exert such influence or use such lawful means as he may deem proper, to effect the election of such directors. But the statute does not, we think, cut off all rights of the stockholders of a corporation to examine its transferfiiooks for proper purposes, and on proper occasions, at other times.

There are no words in the statute indicating such an intention, nor any negation of the rights of stockholders, which requires that construction. We think, therefore, that it is within the power of the court, whenever a case is presented that requires it to be done, for the purpose of preserving the rights and interests of stockholders, to interfere by mcmda/rrws and compel the exhibition of the transfer-books of the corporation, or the books containing the names of its stockholders.

But we agree with the learned coxu't below that the reasons for granting a writ in such a case “ should be clear and cogent.” In this case it is shown that there was to be no election within thirty days next after the time of the application. The case is not, therefore, within the provisions of the statute above referred to. It stands altogether upon the legal or equitable rights of the relators. Upon this point the court below, in its opinion, says:

“An examination of the papers read in favor of, and in opposition to, the motion, must, I think, convince any impartial mind that there is no exigency existing which calls for the granting of the writ applied for in this case. The charges of mismanagement on the part of the present board of directors, or some of them, are very fully met and denied by the respondents’ affidavits; and the reduction of the through freight and passenger rates, and the division of such rates, seem to be thoroughly justified by the facts and circumstances stated in the respondents’ affidavits. While, therefore, I am not prepared to concede that the power of this court to issue a ma/ndamus to compel the exhibition of the transfer-books can only be exercised during the period of thirty days prior to an election, I do not think that the case made by the relator calls for the granting of the writ.”

In this conclusion of the learned judge we fully concur. The application is addressed to the sound discretion of the court. It is shown, on the part of the transfer agent, that the dealings in the stock of the company are so great, and the call for transfers of such stock so constant, as to require two clerks to be steadily engaged in using the books in the making of transfers and the issuing of certificates. The stockholders are constantly changing, and an examination on any given day, or during any given week, would fail to disclose the real stockholders with any great degree of accuracy. The examination when the transfer-books are closed preparatory to an election would, of course, produce quite different results, for then the persons entitled to vote at the elections would be easily ascertained and determined by the books themselves. To hold that every person who shows himself to be a holder of stock is at liberty to demand an examination of the transfer-books when, and as often as he pleases, and if refused, to apply for a writ of mcmdamus to enforce an absolute right, would be to establish a rule highly prejudicial to the interests of all corporations and their stockholders. A few inimical holders of stock could thereby produce great embarrassment and injury, and substantially prevent any large dealings in the stock by others.

The power of the court should be exercised in such cases with great discrimination and care; and while stockholders should be carefully protected from any abuse, on the part of the corporation, of its powers, or unjust denial of their rights, so, on the other hand, courts should guard against all attempts by combinations hostile to the corporation, or its existing officers, to use its writ of mcmda/rrms to accomplish their personal or speculative ends. In this case, we are satisfied, from all the papers before us, that there was neither occasion nor necessity for interference by the exercise of the summary and arbitrary power of the writ of mcmdamus.

Ample remedies are afforded by the ordinary processes of the court to correct all of the real or supposed wrongs alleged by the relator to exist, and those remedies ought to be pursued in the case now presented.

We think the order of the court below was right and should be affirmed, with ten dollars costs and disbursements.

Beaut and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    MARTIN MAAS and others, Respondents, v. THE MISSOURI, KANSAS AND TEXAS RAILWAY COMPANY and THE UNION TRUST COMPANY OF NEW YORK, Appellants.

      Liability of company, for stolen bonds —Forgery.

    Nine bonds were stolen from the T. and N. R. R. Co. At the time they were taken they were incomplete; the seal of the company, and the certificate of the Union Trust Company requisite to their validity, not having been affixed. Subsequently these were forged and affixed to the bonds, and the same were purchased by the plaintiff for value, and in good faith. In an action brought by him upon the bonds, held, that the company was not liable thereon.
    This action was brought against the first-named defendant, which had agreed to replace the bonds of the T. and N. R. R. Co. by its own. The referee decided that it should issue new bonds for those held by plaintiff, and pay to him $3,780, the difference between the value of its bonds, when a demand for them was made, and the value at the time of the trial. 22eld, that this was error; that, if entitled to recover at all, the plaintiff might have either the new bonds, or their market value with damages for the diminution of value from the time of the demand to the time of the decision, but that he could not have both the bonds and the damages.
    Appeal from a judgment in favor of the plaintiff, entered on tbe report of a referee.
    Tbe action was brought to compel defendants to issue to tbe plaintiffs first mortgage bonds of tbe Missouri, Kansas and Texas Railway Company, certified by tbe Union Trust Company of New York, in exchange for tbe surrender of certain alleged bonds of tbe Tebo and Neosho Rafiroad Company.
    On tbe 1st day of June, a. d. 1810, tbe Tebo and Neosho Railroad Company executed a mortgage on its raik’oad to secure an issue of 2,000 bonds of $1,000 each, payable June 1, 1903, with interest, etc.
    By tbe terms of tbe mortgage each of these bonds bad to be properly signed and sealed by tbe railroad company, and also to be certified by tbe trust company, to be one of tbe series secured by tbe mortgage before tbe bond became obligatory on tbe railroad company.
    Each of tbe bonds contained tbe following clause :

      “ This bond shall not become obligatory until it shall have been authenticated by a certificate indorsed tbereon, duly signed by the trustee aforesaid.”
    And the testatum clause of each bond was as follows:
    “ In witness whereof the said Tebo and Neosho Railroad Company has caused its corporate name and seal to be hereunto affixed by its president and secretary on the 1st day of June, 1870.”
    The railroad company had caused these 2,000 bonds to be prepared and printed, and on or before August 8, 1870, the nine bonds in question had, with other bonds, been signed by the president and secretary with the intent and for the purpose of being duly sealed with the corporate seal and then transmitted to the office of the trust company for certification.
    In this condition the bonds were stolen. The corporate seal of the company never was- affixed to them, but a fabricated seal, in imitation of the genuine one, was affixed without the knowledge or order of the railroad company.
    These bonds never came to the possession of the trust company, but the signature of the president of the trust company was forged to the certificate.
    These nine bonds were never sold or put in circulation by the railroad company, nor did the said company ever receive any consideration for said bonds, and at the time of the making of the series of 2,000 bonds the railroad company had contracted for the building of its road, and had agreed to give to its contractors the whole of the issue of 2,000 bonds.
    The persons who stole these bonds, after forging the corporate seal and the signature of the president of the trust company, put the bonds on the market and on the 13th of July, 1872, they were purchased by the plaintiffs for the sum of $8,280, being at the rate of ninety-two per cent.
    On the 19th October, 1872, the Tebo and Neosho Railroad Company conveyed a large portion of its road to the Missouri, Kansas and Texas Railway Company, subject to the before-mentioned mortgage.
    On the 1st of February, 1871, the Missouri, Kansas and Texas Railway Company executed to the Union Trust Company a mortgage on its railroad to secure an issue of some 14,000 bonds of $1,000 each.

      ■ This company bas also become tbe grantee of tbe railroad of a corporation known as tbe Union Pacific Railway Company, southern branch, and tbe said Union Pacific company and tbe Missouri, Kansas and Texas company bad executed mortgages on their respective roads to secure issues of bonds prior to tbe above-mentioned mortgage of February 1, 1871.
    This mortgage of February 1, 1871, was intended to be a consolidated mortgage and to call in and,.take up tbe bonds of tbe three prior mortgages, respectively, i. e., tbe Tebo and Neosho, tbe Union Pacific and tbe Missouri, Kansas and Texas mortgage, and to issue consolidated mortgage bonds in place thereof; and to effect that purpose it provided, that 7,345 of tbe 14,000 bonds should be reserved to call in and exchange for tbe said Tebo, Union Pacific and old Missouri, Kansas and Texas bonds.
    Of these 7,345 bonds 2,000 bad been executed by tbe railway company, and delivered to tbe trust company for pmposes of exchange for Tebo and Neosho bonds, prior to tbe commencement of this action.
    Since tbe commencement of this action tbe railway company bas issued and debvered to tbe Land Grant Railway and Trust Company, its contractor, nine bonds, secured by tbe mortgage of February 1, 1871, in place of tbe nine Tebo and Neosho bonds supposed to have been lost, and in order to make up tbe full 2,000 bonds that tbe construction company was to receive.
    Tbe trust company bas exchanged 1,639 of tbe 2,000 Missouri, Kansas and Texas consolidated bonds appropriated for exchange for Tebo and Neosho bonds for tbe same number of Tebo and Neosho bonds, and it bas 361 left unexchanged.
    On tbe 13th July, 1872, plaintiffs offered to tbe defendant railway company tbe nine bonds in suit with a request to have them exchanged for defendants’ consohdated bonds. Defendants’ secretary received and receipted for said nine bonds and they were, thereupon, put in possession of tbe trust company, where they now remain, and delivery of consohdated Missouri, Kansas and Texas bonds therefor bas been refused.
    When tbe suit was commenced Tebo and Neosho bonds were worth ninety-two and tbe consolidated bonds par. At tbe time of tbe trial both bonds were worth but forty-nine per cent.

      On these facts tbe referee gave judgment that tbe defendants issue and dehver to tbe plaintiffs nine consolidated bonds in place of tbe nine Tebo and Neosbo forged bonds, and, in addition, awarded damages against tbe defendant railway company for tbe difference between tbe price paid by plaintiffs for tbe nine bonds and tbe value of Tebo and Neosbo valid bonds at tbe time of tbe trial.

      Wheeler H. Peckham, for tbe appellants.
    The plaintiff cannot recover because tbe bonds bad never been delivered; bad never bad any legal inception. (Lansmg v. Games, 2 Johns., 302, et seq. / JMorvvn v. JMcOullom, 20 id., 288; Edw. on Bills, 186 ; People v. Loomis, 4 Denio, 380-384; Ooddirngton v. Gilbert, 11 N. Y., 490 ; Whitney v. Smyder, 2 Bans., 4YY, 4Y8 ; Foster v. JMJeKvnnon,A L. R., C. P., Y04; GcmlMns v. Whisler, 29 Iowa, 495; Wait v. Pomeroy, 20 Mich., 425; Bwnson v. Hwntmgton, 21 Mich., 415; Grover v. Olark, 21 La. An., 56Y; Lenheim v. Wilmerdi/ng, 55 Penn. St., Y3; Hall v. Wilson, 16 Barb., 55; Led/wiah v. JMJeJBJim, 53 N. Y., 312.)

      A. P. JDyett, for tbe respondents.
    Tbe nine first mortgage bonds of tbe Tebo and Neosbo raüroad were negotiable, and tbe plaintiffs bona fide holders thereof for value, as those terms are understood in tbe law merchant. (Bramard v. H. Y. and H. B. P. Go., 25 N. Y., 496; Bank of Pome v. Yillage of Pome, 19 id., 20; JMJereer Gowntry v. Haekett, 1 "Wall., 83; Birdsall v. Bussell, 29 N. Y., 220, and eases cited by Russell; Arg., 228-230, 232 ; Fmnegon v. Lee, 18 How. Pr., 186 ; Hubbard v. H. Y., etc., P. P. Go., 14 Abb., 2Y5.) Although a party be induced by fraud, or even duress, to sign an instrument, and although be never delivered or intended to deliver it, yet, if when be signed it be knew what be was signing, and intended to sign just such an instrument, tbe decisions are uniform, that in such a case be is liable to a bona fide bolder for value, though tbe instrument was stolen from bis possession, or otherwise fraudulently put in circulation, where there is nothing on tbe face of tbe instrument to excite tbe suspicion of ordinary men, and tbe purchaser is not required to closely or critically examine it. (First Hat. Bk. v. Green, 43 N. Y., 298; Hyer v. JDorehester Bank, 11 Gush., 51; D%vnr can v. Scott, 1 Gamp., 100; JDutehess Go., etc., Lns. Go. v. Hatehfield, 8 N. Y. S. O., 6Y5; Wo^'eester Bank v. JDorehester, etc., 10 Gush. 488; Sybell v. Hat. Currency Bank, 54 N. Y., 288 ; Vale v. Pa/rker, 6 Wend., 615, 620 ; Putnam y. Sullivan, 4 Mass., 45; Matthews y. Mass. Hat. Bk., Am. Law Reg. [March, 1875], 153; Pars, on Bills, 114, cited at pp. 314, 315,317 of Foster v. McKinnon, L. R., 4 C. P., 704; Young v. Grote, 4 Bing., 253 ; Byles on Bills [6th ed.], 292, note a and note 1, and Bex v. Pevett, cited at p. 103 ; Murray v. Ga/rdner, 2 Wall., 10; Ingham v. Primrose, 28 L. J. [C. P.], 295; 7 C. B. [N. S.], 82; Montague v. Perkins, 22 L. J. [C. P.], 188; S. C., Jurist, vol. 17, pt. 1; Van Duzer v. Howe, 21N. Y., 531; Avoden y. Dixon, 6 Exch., 869; Magee v. Badger, 34 N. Y., 247; Scholey y. Hams-bottom, 2 Camp., 485 ; Bank Gom. v. Ou/rry, 2 Dana, 122; Moody y. Tlvrehild, 13 G-a., 55; Shipley v? Carroll, 45 111.; Welsh y. Sage, 47 N. Y., 143,146; Goodman v. Linard, 25 How. [U. S.], 343; Briggs v. Ewart, 51 Miss., 245 ; Audi v. Colket, N. Y. Weekly Dig., yol. 2, p. 30; Hekvese y. Hibernia Bank, id., 517; Qikizeni Bank v. Smith, id., 147.) It is immaterial that those nine bonds were not sealed with the genuine seal of the railroad company. The mortgage under which they were given was sealed. A seal was not necessary to their validity as obligations of the company. (37 Me., 349 ; 12 Mich., 138; 3 Miss., 385; 19 Johns., 60; Barnes v. Ontario Bank, 19 N. Y., 63.)
   Davis, P. J.:

It is very clear from the findings of the learned referee, that at the time the nine bonds in question were stolen, they were of no force as obligations against the Tébo and Neosho Railway Company. They were in course of preparation by that company, with the design to issue them as bonds when they should be completed. The corporate seal had not been affixed, nor had the certificate of the Union Trust Company, which was a prerequisite of their validity, been made.

In that condition no person could have enforced them against the railroad company, for there is no possible ground or reason for asserting that they had become its valid obligations, and their invalidity clearly appeared upon their face. At the time they were taken from the possession of the company they were mere waste paper, into whosesoever hands they might come. The learned referee finds that after the bonds were stolen, the seal of the company was forged by some person, and affixed in apparent due form to each of the bonds, and tbat tbe signature of tbe president of tbe Union Trust Company was also forged to each of the certificates. This made tbem apparently vahd instruments upon then face, and tbe plaintiffs became purchasers of tbem while in tbat condition, in good faith and for value. They now seek to compel tbe defendants, tbe Missouri, Kansas and Texas Railroad Conqpany, to issue other bonds in place of tbe nine bonds in question, in pursuance of a contract of consolidation between tbat company and tbe Tebo and Neosho company,, by which they were to take up tbe outstanding bonds of tbe Tebo and Neosho company and replace tbem with their own. Tbe question is precisely as though tbe action was brought upon tbe nine bonds against tbe Tebo and Neosho Railway Company.

It is well settled law, tbat where tbe bonds of a railway company have come into tbe bands of a bona fide purchaser, for value, they may be enforced by such purchaser against tbe company, notwithstanding they have, in fact, been stolen from some former bolder, or from tbe. company itself. But we think, in no case has it been held tbat instruments, purporting to be bonds of a raüroad company, but which are in fact forgeries, and never bad any legal inception as obligations of tbe company, can be enforced as vahd bonds, because tbe forgery has been so skillfully performed as to deceive an innocent purchaser.

It seems to us unnecessary to enter upon an examination of tbe numerous cases bearing more or less nearly or remotely upon tbe question. It is enough, we think, to constitute a perfect defense, tbat tbe corporation is able to say, “ these are not bonds, ever made, or issued by us, but are forgeries, upon which no hability ever existed or arose against us.”

It is not shown or claimed in this case, tbat tbe bonds in question were ever issued by tbe railway company in any form, or were ever completed so as to have tbe form of apparent obligations, and while in tbat condition lost or stolen ; or tbat any consideration whatever, bad ever been received by such company for tbem, or tbat tbe company bad ever ratified or confirmed tbe instruments, or done any act to induce tbe purchase of tbem by tbe plaintiffs, which can estop tbem from asserting tbat tbe instruments are forgeries. It is not a case where a person has stolen tbe completed bonds of a company, which, have been issued or are ready to be issued as perfect obligations; but one in which papers inchoate and incomplete, bearing upon their face the evidence of that condition and nothing more, and which can have the semblance of perfected obligations only by means of forgery, have been stolen and by some person made to bear the appearance of validity and genuineness by criminal acts of forgery.

In such a case there is no reason, either on authority or in principle, for holding that the victim of the theft of the incomplete and valueless instruments shall compensate persons, who may have been deceived and defrauded by means of the subsequent forgery. If that shall be held, there is no reason why all forged paper shall not be adjudged valid in the hands of bona fide purchasers for value, against all persons whose names shall be simulated upon it. We are of opinion that the learned referee ought, upon the facts found by him, to have directed judgment for the defendants instead of for the plaintiffs.

The referee erred also, we thiuk, in awarding the- measure of damages given to the plaintiffs, and for which judgment has been entered.

The judgment requires that the defendants, the Missouri, Kansas and Texas Railway Company, deliver to the plaintiff nine bonds of $1,000 each, with semi-annual interest coupons attached thereto, payable on the first day of June, 1903, in gold, and in addition, that the company pay $3,870 — being the difference between the amount the plaintiff paid for the nine bonds of the Tebo and Neosho company on the 12th of July, 1872, and the value of the Missouri, Kansas and Texas Railway Company bonds, at the date of the referee’s decision. That this measure of damages is incorrect seems, to us, clearly apparent from a statement of its effect upon the defendants. The Missouri, Kansas and Texas Railway Company, are presumed, in the absence of evidence, to be perfectly responsible and able to pay the interest on the bonds issued, as it shall mature, and the principal when it falls due. But in addition to the $9j000 in gold and interest, which they will covenant to pay 'by the delivery of their bonds, they are required to pay presently the additional sum of $3,870, as a depreciation of the net market value between the date of the demand made by the plaintiffs for such bonds and the date of their delivery. This is upon the assumption that the plaintiffs will dispose of the bonds at present market value, and thereby themselves suffer that amount of loss. The assumption may be trae or false; but its truth is established by no evidence in the case. But if it were, it is still apparent that the defendants will be required to pay the full amount of these bonds at maturity, as well as the accruing interest up to that time, either to the plaintiffs or to whomsoever may then be holders of the bonds. Discharging that obligation is the performance of their whole duty, and will put the holders of the bonds in possession of all that could ever have been claimed or enforced upon them, had no question been raised as to the validity of the bonds, and all that could ever have been collected upon the original instruments in any event. But the result of the judgment is, that in addition to their paying their obligations in full, the defendants shall, also' pay the amount above named. If the market value of the bonds shall be increased to par' by a change in the market within a month or a year, no provision whatever is made by which the defendants shall have any benefit of this sum of $3,8Y0 ; nor if they are ready to pay the obligations in full at their maturity, as they will be bound to do, is any provision made by which this large amount now paid can inure to any extent to their benefit. It might well be, that if the plaintiffs were entitled to recover at all in the case, they could elect whether to have bonds actually issued to them or their market value, with damages by reason of the diminution, from the time of the demand until the time of the decision. But that they can do both, to witj be placed in a position in which they are entitled to the full par value of the bonds and all present and accruing interest, and at the same time to a purely imaginary loss, which they have not in fact sustained, but may sustain if they choose not to keep the bonds, but put them upon the present market is, we think, going beyond the measure of damages that would do exact and equal justice between the parties.

Under the rule adopted by the learned referee, if the bonds had ceased to have anypresent market value, the plaintiffs could recover $9,000 in gold and all the interest that has accrued thereon, and have delivered to them in addition to such recovery, nine bonds of $1,000 each, payable in gold, with semi-annual interest coupons, and be entitled to tbe whole amount thereof at tbe maturity of tbe bonds. Such a result could not be sound either in law or morals.

For these reasons, also, we think tbe decision of tbe learned referee cannot be upheld. Tbe judgment should be reversed and a new trial granted, with costs to abide tbe event.

Beady and Daniels, JJ., concurred.

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


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    ISAAC BERNHEIMER and SIMON BERNHEIMER, Respondents, v. BENJAMIN A. WILLIS, Impleaded with others, Appellant.

      Action to foreclose a mortgage — Counter-claim — Reply — when required.

    In an action brought to foreclose a mortgage for $25,000, the defendant alleged in his answer that at the time of its execution, he being desirous of purchasing certain real estate, borrowed $88,000 of the plaintiff, which was to be secured by mortgage on the premises to be purchased. That subsequently he, at plaintiff’s request, gave the mortgage in suit upon half of the premises, and an absolute deed of the other half, which it was agreed should be in fact a mortgage to secure the remaining $18,000. That plaintiff never claimed that the deed was an absolute one. Defendant then prayed to be allowed to pay the $38,000, and all interest due thereon, and have the deed canceled and the mortgage satisfied. Held, that the cause of action, alleged in the answer, arose out of the contract or transaction set forth in the complaint, and constituted a counter-claim to which a reply was necessary.
    Appeal from an order of tbe Special Term, denying a motion for judgment for want of reply to a counter-claim.

      John JR. Dos Passos, for tbe appellant.

      J. Dralce and George Douglas, for tbe respondents.
   Davis, P. J.:

Tbis action was brought to foreclose a mortgage of tbe undivided balf of a number of lots in tbe city of New York. Tbe appellant,

.3 the mortgagor, admitted by Ms answer tbe execution and delivery of the bond and mortgage described in tbe amended complaint ; and, for a third separate defense and counter-claim,” be alleged tbat, about tbe time of tbe date of tbe mortgage, be was about purchasing tbe whole of tbe property described in tbe complaint and mortgage, and required for such purpose, among other moneys, tbe sum of $50,000 ; tbat tbe plaintiffs agreed to lend to bin tbat amount in consideration of Ms agreeing to pay tbe same with legal interest, and to secure its payment by a mortgage of such property; tbat in reality they advanced and lent him only $38,000, and instead of receiving one mortgage for tbe entire amount of $38,000, they desired and requested him to give them a mortgage of $25,000, payable in two years from its date, and to secure tbe residue by giving to plaintiff an absolute deed 'of one-balf of said property, which it was distinctly agreed was to be taken, received and regarded as a mortgage; tbat in violation of said agreement, tbe plaintiffs now maintain and allege tbat tbe formal conveyance of tbe one-balf of tbe land was an absolute and unqualified deed, and refuse to regard it otherwise, though often requested' so to do: tbat tbe defendant is, and has been at all times, ready and willing to pay tbe said sum of $38,000, and interest and all proper expenses, upon a reconveyance of tbe said one-balf of said lands, and. tbe satisfaction and cancellation of tbe mortgage on which this suit was brought; ” and be prays judgment, in substance, tbat tbe deed for one-balf of tbe lands be declared a mortgage, and tbat plaintiffs be compelled, upon payment of said sum of $38,000, and any sum which may be found to be due to them, to execute a reconveyance of tbe property therein described, and to satisfy tbe mortgage upon wMcb this smt was brought. Tbe court below held tbat this answer did not set up a counter-claim within tbe mearnng of section 150 of tbe Code, because tbe cause of action alleged as a counterclaim did not arise out of tbe contract or transaction set forth in tbe complaint as tbe foundation of tbe plaintiffs’ claim, and was not connected with tbe subject of tbe action. We think tbe court below was in error. Tbe allegations of tbe answer show, in substance, tbat an agreement was made for a loan upon tbe whole of tbe lands described in tbe mortgage and complaint, to be secured by a mortgage on tbe whole, but tbat tbe plaintiffs, when they advanced the $38,000 under such agreement, required the appellant to execute a bond and mortgage upon one-half of the property to secure $25,000 of the moneys advanced, and to secure the balance of $13,000 by an absolute deed of the other half of the lands, which was really to be a mortgage, although in the form of an absolute deed. It alleges his readiness and offer to repay the whole loan of $38,000 upon the satisfaction of the mortgage in suit, and the reconveyance of the equal undivided one-half of the lots so conveyed to them; and it also alleges that the plaintiffs assert and maintain that the deed to them is absolute and unqualified, and not a mortgage, and claim to hold said lots as if granted to them in fee; and the relief ashed by the defendant is, that the deed of the lots may be declared a mortgage, and that he may be permitted to pay off the whole loan upon the reconveyance of the equal undivided one-half of the lands, and the satisfaction of the mortgage in suit. This statement shows a case which, in our judgment, is within the provisions of section 150 of the Code, for if the allegations of the defendant be as alleged in the counter-claim, it does arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiffs’ claim, and is directly connected with the subject of the action.

There is no difficulty in trying the controversy thus presented in this action between the plaintiffs and the defendant Willis. If the defendant succeeds in establishing his claim, he will be able to redeem the whole of said lots by payment of the amount found due upon the entire loan of $38,000 ; and it may be to his interest and advantage to do that, while it may be quite otherwise in respect only to the part actually covered by the mortgage for $25,000. He has the right, we think, to have the question litigated in this action. The reply was therefore necessary under the Code, and the defendant was right in his motion under section 151. ••

The court below, however, would undoubtedly have given leave to reply on terms, instead of rendering final judgment on the counter-claim, if it had not come to the conclusion that the answer did not contain a counter-claim. We ought to give the same directions. The order below should be reversed, and an order entered granting judgment upon the counter-claim, unless the respondents shall, within twenty days after the service of the order to be entered hereon, serve a reply to the counter-claim, and pay ten dollars costs of the motion below, and ten dollars costs of appeal, besides disbursements.

Beady and Daniels, JJ., concurred.

Order reversed; order entered granting judgment on counterclaim, unless respondents, within twenty days after service of order to be entered hereon, serve a reply to counter-claim, and pay ten dollars costs of motion below, and ten dollars costs of appeal, besides disbursements.


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    WILLIAM E. DEMAREST, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Bowd of assistant ald&rmen of tha city of New Yoiic — constitutionality of act abolishing — chay). 335 of 1873 — Action for sala/ry.

    Chapter 335 of 1873, abolishing the board of assistant aldermen of the city of New York, is constitutional and valid.
    This action was brought by the plaintiff to recover his salary, as assistant aider-man, for the year 1875. Held, that the action could not be maintained, because
    (1) it was only alleged that votes sufficient to elect Mm had been cast for Mm, and it was nowhere alleged that such votes had been canvassed by the proper officers, and that upon such canvass he had been declared elected; and, because,
    (2) as it was not alleged that any other members of the board had been elected, there were no duties for him to perform.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tbis action upon a demurrer interposed by tbe defendant on tbe ground that tbe complaint did not state facts sufficient to constitute a cause of action.
    Tbe action was brought to recover tbe salary alleged to be due to tbe plaintiff as an assistant alderman of tbe city of New York. He claimed that chapter 835 of 1873, abolishing tbe board of assistant aldermen of New York, and chapter 757 of 18Y3, providing for tbe election of a single board, were unconstitutional. That at tbe election held on November 3,1874, be received a large number of votes cast at that election for assistant alderman. That said votes were duly received, counted, proclaimed and returned by the inspector of election, and that he was duly elected to the office. That during the year he offered his services to the defendant, and offered to perform all duties and services required of him in that capacity, and that he in every way fully performed all such services and duties so far as the defendant would permit him to do.

      Wilson F. Wolf, for the appellant.

      D. J. Dea/n, for the respondent.
   Davis, P. J.:

By chapter 335 of the Laws of 1873, passed April 30, 1873, the board of assistant aldermen was abolished from and after the first day of January, 1875. The broad question presented on this demurrer relates to the constitutionality of the provisions of the act of 1873, abolishing that board. That question has already been considered in. this court, in Demarest v. Wickham,, Mayor, etc. (11 S. C. N. Y. [4 Hun], 627), in which it was held that the act abolishing the assistant aldermen was constitutional. We adhere to the views expressed by the court in the opinion delivered by Daniels, J. It is not at all material to consider the question of the validity of the act of June 13, 1873 (Laws of 1873, chap. 757), which declared and regulated the mode of electing aldermen in the city of New York,, because the constitutionality of the act of April 30, 1873, does not depend in any sense upon the validity of the act of June 13, 1873. But if the act abolishing the board of assistant aldermen were declared to be unconstitutional, the averments of the complaint would not in that case be sufficient to show the plaintiff’s right to recover the salary for which this action is brought; first, because the complaint fails to show that the votes alleged to have been cast for him at the election of 1874 were ever canvassed by the proper authorities of the city, and that he was, upon such canvass, duly declared elected to such office. It shows, only, that votes were cast sufficient to have elected him to the office, if the same had been properly canvassed in accordance with the requirements of law. This is not sufficient to show the plaintiff entitled to enter upon the discharge of the duties of the office so as to prosecute for the salary. Second. The plaintiff fails to show the election of a board of assistant aldermen, or of any other member of said board beside himself; and inasmuch as it appears by the averments of the complaint that the office itself was abolished by the legislature, we cannot presume that any such board was elected. The existence of a board, therefore, was not shown, nor can it be presumed. Hence there were no duties for the plaintiff to perform, inasmuch as it was impossible for him alone, lawfully to constitute a board of assistant aldermen. Without the existence of the board there could be no duties, and consequently there could be no title to any salary.

Even if a board of assistant aldermen might lawfully have been elected at the time the plaintiff alleges that he was chosen to the office, the fact that no such board was elected is fatal, we think, to the demand of the plaintiff, as the non-existence of the board renders it impossible for him to perform any duty or function of the office, and thereby to earn any compensation or salary.

The judgment of the court below should be affirmed.

Brady and Daniels, JJ., concurred.

Judgment affirmed.