text:
    Mutual Life Insurance Company of New York, App’lt, v. Forty-second Street & Grand Street Ferry Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1893.)

    1. Corporations—Fraudulent issue of stock.
    The issuance of certificates of stock in due form by a person, who was at the time invested with authority to sign, countersign and seal valid certificate of stock and was then acting within the scope of his apparent authority, is a representation by him that all the conditions have been complied with, and the facts exist upon which his right to act depends.
    Same—Subrogation.
    Where a person, at the instance of another, advances his money to redeem, or even pay off, a security in which the latter has an interest, equity will, if necessary, imply an agreement that the security shall subsist for his own use, and it will be enforced.
    Appeal from a judgment in favor of defendant.

      Miller é Wells (Chas. E. Miller, of counsel), for app’lt; Freling H. Smith, for resp’t.
   Van Brunt, P. J.

There seems to be no serious dispute in regard to the material facts out of which arises the controversy sought to be settled in this action. For some time prior to and on the 3d of February, 1883, John Green was president, Charles Curtiss was treasurer, and .Eben S. Allen was secretary and transfer agent of the defendant. Prior to this time, Green signed, as president, certain blank certificates of stock of the defendant, one of which is the subject-matter of this action, and handed the same to Curtiss, the treasurer, who shortly after delivered the same to Allen, who thereafter kept them in his private drawer. In January, 1886, Allen took one of said blank certificates signed by Green as president, and filled out the same, dating it February 3, 1883, numbering it 976, and stating the number of shares which it represented to be 229, and that the same belonged to F. W. Hofele, and writing the ñamé of Charles Curtiss opposite the printed word “ Treasurer,” upon said certificate, without the knowledge or authority of said Curtiss, and below writing his-name, Eben S. Allen, opposite the words “Transfer Agent.” This certificate Allen delivered to said F. W. Hofele. Green had ceased to be president of the defendant, and Curtis had ceased to-be the treasurer, in April, 1883. When the said certificate was filled out in January, 1886, as above stated, Charles Curtiss was-president, and Allen was treasurer, secretary and transfer agent of the defendant. The certificate, as filled out by Allen, read as follows:

“ Capital Stock, $750,000. Shares, $100 each.
“ The Forty-second Street and Grand Street Ferry Railroad Company, City of Hew York.
“Ho. 976. 229 Shares.
“ This is to certify that F. W. Hofele is entitled to two hundred and twenty-nine shares, of one hundred dollars each, in the capital stock of the Forty-second Street and Grand Street Ferry Railroad Company, transferable only on the books of the company, by him or his attorney, upon surrender of this certificate to be canceled, indorsed with the name of the party to whom a new certificate is to be issued for said stock, or any part thereof, and accompanied with a declaration of sale or transfer, setting forth the number of shares transferred, and the person to whom, and the time when, the same are so transferred. Ho certificate shall bind this company unless the same be signed by the president, and countersigned by their treasurer and transfer agent.
“ In witness whereof the said company have caused this certificate to be signed by their president, and to be countersigned by their treasurer and transfer agent, and sealed with their corporate seal, this third day of February, one thousand eight hundred and eighty-three.
[Seal.] “Chas. Curtis, Treasurer.
John Green, President.
“ Eben S. Allen, Transfer Agent.”

The issuance of this certificate was never authorized by the defendant, but the same was fraudulently and feloniously issued by Allen, and neither the defendant nor any of its officers, except Allen, had any knowledge or information of such issuance until August, 1889, when the plaintiff demanded the transfer of the stock purporting to be represented by such certificate. After the receipt by Hofele of such certificate, he applied to the American Exchange Batik for a loan of $30,000 upon his note, and tendered this certificate as collateral security. The bank thereupon, and before making the loan, made inquiry at the defendant’s office as to the genuineness of the certificate, and was informed by Allen, who was treasurer, secretary, and transfer agent, and had charge of the issuance of stock, that it was genuine. Upon receiving this information the bank made the loan of $30,000 upon Hofele’s note, taking said certificate as collateral. Subsequently, while the loan made by the American Exchange Bank remained unpaid, one Grant, acting in his own name, but really representing Hofele, applied to the plaintiff for a loan of $33,000, and offered to give as collateral security 229 shares of defendant’s stock, which the plaintiff agreed to take. Afterwards, Grant, accompanied by a messenger from the American Exchange Bank, who brought the certificate of stock held by the bank as collateral to the loan of Hofele, came to plaintiff’s place of business, and, Grant having made his note for $33,000, the same, with the certificate in question, was delivered to the plaintiff, and it issued its check for the amount of the loan, which Grant then and there indorsed to the American Exchange Bank, and delivered to the messenger, and subsequently received back Hofele’s note, and a certificate to Hofele’s order, for the difference between Hofele’s note and the amount received from the plaintiff, less $320 paid in money. Before making this loan to Grant, the plaintiff inquired of the American Exchange Bank what it knew as to the certificate, and the information previously received by the bank from the office of the defendant was communicated. The loan by plaintiff was renewed from time to time, no part thereof having been paid. Subsequently, the plaintiff demanded a transfer of the stock, but such transfer was refused, and thereupon this action was brought to recover the damages sustained. The cause having been tried before a referee, and he having reported for a dismissal of the complaint, from the judgment entered upon such report, this appeal is taken.

Two questions seem to be presented, which it is necessary to consider. The first is whether the defendant is bound by the representations contained in the certificate itself, issued by its duly authorized agent; and, secondly, whether the plaintiff in this action is entitled to any benefit from the representations made to the American Exchange Bank at the office of the company as to the genuineness of this certificate prior to the making of the loan to Hofele. As to the first of these propositions, we are referred by both parties to the decision in the case of the Fifth Avenue Bank against these defendants, Fifth Av. Bank v. Forty-second St., etc., R. Co., 137 N. Y., 231; 50 St. Rep., 712, as an authority establishing both the affirmative and the negative thereot; but we think, upon an examination of the facts in that case and the opinion of the court, it will be seen that it is clearly intended to be decided that, Allen being the agent of the defendant, and being clothed with the authority to perform the final acts required in the issue of a certificate of stock, when he performed those acts, and delivered the certificate with the intent that it might be negotiated, so long as it remained outstanding, such certificate was a continuing affirmation by the defendant that it had been lawfully issued, and that all the conditions precedent upon which the right to issue depended had been duly observed. In the Fifth Avenue Bank case, above cited, at the time of the date of the certificate, Allen was treasurer, secretary and transfer agent, and he forged the name of the president to the certificate of stock, and countersigned the same as president and transfer agent, the difference between that case and the one at bar being that in this case he forged the name of the person who was treasurer at the time of the date of the certificate, instead of,.as in the Fifth Avenue Bank case, forging the name of the president; and the sole question presented is whether this fact creates a difference in respect to the acts of Allen. It is urged upon the part of the respondent that that difference is material, and makes the decision in the Fifth Avenue Bank case support the defendant’s claim that no recovery can be had. This claim is based upon the fact that upon the face of the certificate it appears that it was not only not signed and countersigned by, but it does not even bear the names of, the officers of the company charged with the duty of signing and countersigning it when issued. It ■does, however, bear the names of the persons who were such officers at the time of the date of the certificate ; but the name of the treasurer was forged by Allen, while the signature of the president was genuine. It is further claimed that upon the face of the certificate it was provided that “ no certificate shall bind this company unless the same is signed by the president, and ■countersigned by the treasurer and transfer agentand that the certificate in question not having been countersigned by the treasurer, there was no continuing representation as held in the Fifth Avenue Bank case. But an examination of the opinion in the Fifth Avenue Bank case shows that the question as to the countersignature of the treasurer had no influence whatever with the court in its determination. The point there determined was that the transfer agent was the party who had. the custody of these certificates, and issued them in proper case by and with the assent of the corporation; that he was the officer of the corporation who was invested with that duty, and that the final acts attending their issuance were to be performed by him. This certificate in question was signed by him, and the corporate seal affixed, such corporate seal being in his charge; and, when he did these things, it was an affirmation upon the part of the authorized agent of the company that everything previously done had been rightly done, and the public had a right to rely upon such affirmation. In the Fifth Avenue Bank case the signature of the president was forged, while the face of the certificate gave notice that no certificate should be binding upon the company it was signed by the president; and if the affirmation of the transfer agent, who signed the certificate, made a forged signature of the president binding upon the company, we can see no reason why the affirmation of this same officer in regard to the signature of another officer should not be equally potent. It was not because it was a countersigning that it had this effect. It would have been precisely the same as though the provisions of the certificate were that it should be signed by the transfer agent, instead of countersigned. The affirmation arises from the fact .that the transfer agent was the authority duly appointed by the corporation to affix its seal and sign the certificate as the last acts to be done, and issue it to the public.

The language of the court is:

“ When, therefore, the defendant’s secretary and transfer agent countersigned and sealed this certificate and put it in circulation, he declared in the most formal manner that it had been properly executed by the defendant, and that every essential requirement of law and of the by-laws had been performed to make it a binding act of the company.”

Nothing is said in regard to the countersignature of the treasurer, that that signature must be genuine, in order that the representation should be perfect. In the opinion, attention is called to the familiar rule of agency, as laid down in Story, that:

“ The principle is to be ‘ held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances and omissions of duty of his agent in the course of his employment, although the principle did not authorize, or justify, or participate in, or, indeed, know of, such misconduct, or even if he forbade the acts or disapproved of them. In all such cases the rule applies, “ respondeat superior,” and is founded upon public policy and convenience, for in no other way could there be any safety to third persons in their dealings, either directly with the principal, or indirectly with him through the instrumentality of agents. In every such case the principle holds out Ms agent as competent and fit to be trusted, and thereby in effect he warrants his fidelity and good conduct in all matters within the scope of the agency.’ ”

Then the court go on, and say:

“ It is true that the secretary and transfer agent had no authority to issue a certificate of stock except upon the surrender and cancellation of a previously existing valid certificate, and the signature of the president and treasurer first obtained to the certificate to be issued. But these were facts necessarily and peculiarly within the knowledge of the secretary, and the issue of the certificate in due form was a representation by the secretary and transfer agent that these conditions had been complied with, and that the facts existed upon which his right to act depended. It was a certificate apparently made in the course of his employment as the agent of his company, and within the scope of the general authority conferred upon him; and the defendant is under an implied obligation to make indemnity to the plaintiff for the loss sustained by the negligent or wrongful exercise by its officers of. the general powers conferred upon them.”

If the opinion had stopped here, we think there would have been no ground whatever for the contention that the fact that the secretary and transfer agent in the case at bar had forged the sig-. nature of the treasurer was of any greater consequence than the fact that he had forged the signature of the president in the case cited. It will be seen, from what has already been said in refer-' ence to the case cited, that the theory of the decision is that Allen was the secretary and transfer agent of this company, and that it was within the scope of his authority to issue these certificates after he had procured the signature of the president and treasurer;, and that when he affixed the seal, and signed it as transfer agent,: certifying that these previous acts had been done, and issued the certificate to the public, the public had a right to rely upon the representations of Allen in respect to the regularity of the certificate. Attention is, however, called to the succeeding paragraph in the opinion; and this is the only foundation for the claim that because the certificate in question was not countersigned by the-treasurer, but his signature was forged, the public were not entitled to the protection of the representations of the agent of -the defendant. The court say :

“ The learned counsel for the defendant seeks to distinguish this' case from the authorities cited because the signature of the president to the certificate was not genuine. But we cannot see how the forgery of the name of the president can relieve the defendant.from liability for the fraudulent acts of its secretary, treasurer and transfer agent. They were the officers to whom it had intrusted the authority to make the final declaration as to the validity of the shares of stock it might issue, and where their acts, in the apparent exercise of this power, are accompanied with all the indicia of-genuineness, it is essential to the public welfare that the principal should be responsible to all persons who receive the certificates in good faith, and for a valuable consideration, and in the ordinary course of business, whether the indicia are true or not.”

And after citing authorities, the court continue:

“ The. rule is, we think, correctly stated in 2 Beach Priv. Corp. p. 791, § 488: ‘When certificates of stock contain apparently all the essentials of genuineness, the Iona fide holder thereof has a claim to recognition as a stockholder if such stock can legally be issued, or to indemnity if this cannot be done. The fact of forgery does not extinguish this right when it has been perpetrated by or at the instance of an officer placed in authority by the corporation, and intrusted with the custody of its stock books, and held out by the company as the source of information upon the subject.’ ”

This latter quotation denies that which had gone before — that where a corporation clothes an officer with the authority to finally act, and holds him out as the source of information upon the subject of the regularity of its certificates, they are bound by his acts.

Now, the language to which attention has been called, where the court speaks of the secretary, treasurer, and transfer agent, has no particular significance. The whole scope and reasoning and foundation of the opinion was that Allen had been intrusted by the corporation with the stock books of the company, and held out as the source of information upon the subject of the regularity of its certificates; and the force of their reasoning which pervades the whole opinion cannot be broken by the language used in a casual sentence; and the conclusion arrived at is in accord with the principle enunciated by Story in the quotation ¡above cited, viz., that the principal is responsible for the acts of his agent when acting within the scope of the general authority ■conferred upon him. That does not mean that he does the precise thing which the principal has authorized him to do, but when, so far as the world knows, or can know with reasonable diligence, ■he has so done, the principal is required to respond. Any other •rule would place every person at the mercy of a principal, where •dealings had been had through an agent; and in respect to corporations it would be absolutely impossible that business could be conducted, because the only way to ascertain whether any of its officers have authority to act would be to call a meeting of the board of directors, and get a resolution passed certifying to their powers in respect to each individual transaction. Corporations have become so general that the courts have been compelled to recognize the fact that the officers are to be presumed to have the •authority to perform the duties which such officers ordinarily perform in corporations of a like character.

In view of the conclusion at which we have arrived in respect to the effect of the certificate in question, it may not be necessary to touch upon or discuss the second proposition. It seems to us very clear that, under all the principles governing the right of subrogation, the plaintiff was entitled to be subrogated to whatever rights the American Exchange Bank had acquired by reason of its inquiry at the defendant’s office prior to the making of its loan, to the extent to which the American Exchange Bank had acted upon such information. It is claimed upon the part of the respondent that the representations made to the American Exchange Bank afford no aid to any claim which might be advanced by the plaintiff ; that, if they constituted an estoppel at all, it was only in favor of the bank; the representation was not made to the plaintiff, nor was it made to be communicated to the plaintiff, or to influence its conduct; and that any estoppel it might have created cannot extend beyond the parties to the transaction in relation to which it was made. It is then asserted that this is settled byond all controversy, citing numerous authorities. The authorities, however, do not sustain the proposition for which the respondent contends. Each of them is as distinct in its facts as it is possible to be from the case at bar, except, perhaps, that one might, upon a cursory reading, be held to be in point, and that is the case of Mayenborg v Haynes, 50 N. Y., 675. But on examination it will be seen that even this case has no application. The action was upon a promissory note made by the defendant. The defense was that it was an accommodation note, and was received by the plaintiff after maturity. The note was made for the accommodation of one Hopke, who transferred it to Kugeler as security for an antecedent debt. The latter transferred it to plaintiff after maturity. Kugeler testified that when the note became due he presented it to defendant for payment, who replied, in substance, that he would see about it in two or three days. This conversation was reiterated to plaintiff when he purchased the note, and the latter testified that he supposes he would not have taken the note if this had not been stated to him. The court below charged that if defendant promised to pay the note, and that fact was communicated to plaintiff, and he took the note upon the strength of the communication, believing it to be true, it would constitute an estoppel. This the court held to be error, stating that the declaration o£ the defendant, Kugeler, constituted no estoppel. All that this case decides is that a representation made to one who does not act upon it cannot protect another, to whom it was not intended to be communicated, who does act upon it. If Kugeler had made the inquiry before he took the note, and the representation had then been made in regard to the validity of the note, and he had transferred it to the plaintiff, a different question might have arisen. In the case at bar the facts established show that the American Exchange Bank made the inquiries, and acted thereon, loaning their $30,000. Within the decision of the court in the Fifth Avenue Bank case, they were protected by such representation, and it is not necessary to discuss that question here. When the plaintiff in this action made its loan to Grant, acting as the agent of Hofele, they paid Hofele’s loan to the American Exchange Bank by their own check, and received the collateral which Hofele had deposited as security for that loan, viz., this certificate of stock. The plaintiff’s money paid the debt of Hofele to the American Exchange Bank at his request, and it took up the security. It seems to- be clear that upon the principles of equity, and under all adjudications in regard to subrogation, the plaintiff is subrogated to the rights of the American Exchange Bank, to the extent, at least, of the loan which the latter made. It is undoubtedly true that a volunteer cannot acquire an equitable lien or the right to subrogation ; but it is equally true that he who, at the request of another advances his money to redeem, or even to pay off, a security in which that other has an interest, is not of that character, and, in the absence of an express agreement, one would be implied, if necessary, that it should subsist for his use, and be enforced. But the doctrine of substitution may be applied, although there is no contract, express or implied. It is said to rest on the basis of mere equity and benevolence. In Gans v. Thieme, 93 N. Y., 225, this doctrine of subrogation was applied, certainly, to as. great an extent as should be done in the case at bar. It appeared in that case that one Herman Thieme, deceased, was at the time of his death the owner of certain land described as lots “A” and “B,” subject to a mortgage of $2,000 to the German Savings Bank. ' He left surviving a widow and several children, and by his will appointed Margaretha Thieme and one Petry as executors. They conveyed lot B to one Oexle. The bank released it from the mortgage, and loaned to Oexle §3,000 upon a mortgage executed by him on the same lot. He then conveyed lot B to Mrs. Thieme. She after-wards intermarried with one Benthon, and by subsequent conveyances the title to lot B, subject to the $3,000 mortgage, was vested in them as husband and wife. The two mortgages bore interest at the rate of 7 per cent. In December, 1875, they were due, and nothing had occurred to relieve the estate of the deceased from its liability to pay off the mortgage of §2,000 as one of its debts. Be-' tween December 1, 1875, and January 1,1876, the executors applied to the plaintiffs to advance and loan upon the securities then held by the savings bank the sums of $2,000 and $3,000 for five years, at 6 per cent, instead of 7, at the same time agreeing to cause the mortgages to be assigned to them. They, relying on this assurance, advanced their money to the estate of Thieme, and the executors paid it over to the bank, but permitted the mortgages to-be discharged of record, and subsequently delivered to the plaintiffs a bond, executed by Charles Bethon and Margaretha Bethon, executors, etc., for the sum of $3,000, with a mortgage as collateral thereto, executed in like manner, upon lot A, and a bond executed by Margaretha Bethon and Charles Bethon for $2,000, with a mortgage collateral thereto, upon lot B; and these bonds and mortgages were delivered to the plaintiffs in place of the bonds and mortgages held by the savings bank without the knowledge or consent of the plaintiffs, who were ignorant of the true character of the papers so delivered to them until shortly before the commencement of the action. And the court held that by the understanding between the executors and the plaintiffs the latter had a right to stand in the place of the bank, and take the full benefit of this security ; the principle invoked being that where one, at the instance of another, advanced his money to redeem, or even pay off, a security in which that other has an interest, if necessary, equity will imply an agreement that the security will subsist for his use, and it will be enforced. Applying this rule to the case at bar, when Hofele requested the plaintiffs to pay his debt to the American Exchange Bank, and receive from the bank the security, the plaintiffs were entitled to be subrogated to all the security, as far as they advanced their money to pay Hofele’s debt to the American Exchange Bank, which such bank held. Part of that security was the representation made to it in respect to the certificate held by it.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

All concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Myer Hellman et al., Pl’ffs, v. Forty-Second Street & Grand Street Ferry Railroad Company, Def’t.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Motion for a new trial on exceptions ordered to be heard in the first instance at general term.

      Iloadly, Lauterbach & Johnson {Geo. Hoadly, of counsel), for pl’ffs; Freling H. Smith, for def’t.
   Van Brunt, P. J.

This action was brought to recover damages for refusal of the defendant to transfer certain stock. The certificate which the plaintiff offered to surrender upon such transfer was similar to the one involved in the action of the Mutual Life Insurance Company against this same defendant, in which case it was held that the defendant was liable under the rulé which imposes a liability upon the principal for the unauthorized acts of his agent; that Allen, who issued the certificate, was at the time secretary, treasurer and transfer agent of the defendant, and invested with authority to sign, countersign and seal valid •certificates of stock, and, when he issued the certificate in question, was acting within the scope of his apparent authority; and that the issuance of the certificates in due form was a representation by him that all the conditions had been complied with, and the facts existed upon which his right to act depended. Mutual L. Ins. Co. v. Forty-second St., etc., R. Co., 26 N. Y. Supp., 545; 57 St. Rep., 215. It follows, therefore, that the exceptions should be overruled, and judgment ordered upon the verdict for the plaintiff, with costs.

All concur.


author: Per Curiam.

text:
    Edgar F. Hale et al., App’lts, v. John B. Brote et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 12, 1893.)

    Attachment—Grounds.
    An attachment, which states inconsistent grounds for its issue, should be vacated.
    Appeal from an order vacating and setting aside an attachment.

      Uriah W. Tompkins, for app’lts ; Roger Foster, for resp’ts.
   Per Curiam.

It appears upon the face of,the attachment that it was issued upon the ground that the defendants have disposed of their property, and are about to dispose of their property, with intent to cheat and defraud their creditors. It is manifest that, if the defendants have disposed of their property, they could not be about to dispose of it, and that the plaintiffs have not complied with the provisions of the Code in stating the ground upon which the attachment was issued. It is impossible for us to tell upon which ground the plaintiffs intended to rely, or which ground it is claimed by them their affidavits tended to support. It would seem, therefore, if for no other reason, that this attachment should have been vacated because it did not state the ground upon which it was granted. This is an error which has been committed before, as is evidenced by the qase of Johnson v. Buckel, 65 Hun, 601; 48 St. Rep., 924, and the cases there cited.

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


author: Parker, J.

text:
    David S. Brown et al., App’lts, v. John H. Doscher, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed Novmber 17, 1893,)

    ■Trade mark—Infringement.
    An action to restrain an alleged infringement of plaintiff's wrapper cannot be maintained, where the resemblance is not such that it is calculated to deceive the ordinary buyer making his purchase under the ordinary conditions which prevail in the conduct of the particular traffic.
    Appeal from a judgment dismissing the complaint.

      Rowland Gox, for app’lts; John Henry Hull, for resp’t.
   Parker, J.

This action was instituted to restrain the use by the defendant of an alleged infringement of plaintiffs’ wrapper. On the appeal from the order denying motion for an injunction pendente lite this court expressed the opinion that the wrapper complained of could not be regarded as such an imitation of the plaintiff’s wrapper as would be likely to deceive. The trial court, while holding that the plaintiffs are entitled to the exclusive use ■of the word “ Blizzard ” as a trade-mark for laundry soap, and the exclusive use of the wrapper which they employed to inclose ■cakes of soap, found as one of the facts, upon which it based the conclusion that the complaint should be dismissed, that the wrapper made use of by the defendant “ is not caculated to deceive plaintiffs’ customers, nor intending purchasers of plaintiffs’ Blizzard soap, and the public;” and, further, that the wrapper has not actually misled any person to buy soap manufactured by defendant in the belief that it was of plaintiffs’ manufacture. After an examination of the wrappers, we agree with the trial judge that the resemblance is not such that it is calculated to deceive the ordinary buyer making his purchase under the ordinary conditions which prevail in the conduct of the particular traffic to which this controversy relates; and a review of the -evidence requires a concurrence in his further finding that buyers have not been deceived by it. Plaintiffs’ were not, therefore, entitled to succeed. Fischer v. Blank, 138 N. Y., 244; 52 St. Rep., 339.

The judgment should be affirmed, with costs.

All concur.


text:
    Wales Henry Dunham, Resp’t, v. Hartley H. Parmenter, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Venue—Convenience of witness.
    A change of venue to the county where the conversion took place will, in an action for the conversion of numerous chattels, be conditionally granted, where it appears that the greater number of witnesses resides in that county.
    Appeal from an order denying a motion to change the venue for the convenience of witnesses.

      Sheldon & Booth, for app’lt; J. George Flammer, for resp’t.
   Per Curiam.

The transactions out of which the alleged cause of action arose all occurred in the county of Clinton. The defendant makes out a case for a change of place of trial. But the plaintiff testifies to six witnesses residing in the county of Hew York, whose evidence he regards as material to establish his. cause of action. Considering the nature of the action, the place where the transaction occurred, the possibility of an earlier trial, and the materiality of the testimony of the greater number of witnesses, we think the motion should have been granted, upon condition that the defendant stipulate that the evidence of the-witnesses residing in this city be taken, if the plaintiff so elects,.. by deposition, to be used on the trial with the same force and effect as though they were produced and sworn.

Order reversed and motion granted, provided the defendant gives the stipulation to take the testimony of the witnesses residing in New York county on deposition, without costs to either party. Upon failure to make the stipulation, the order is affirmed, with costs. _


author: Follett, J.

text:
    Continental National Bank of Boston, Resp’t, v. Horace K. Thurber et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Constitutional law—Substituted service.
    Section 435 of the Code does not violate the constitutional provision that a person shall not he deprived of his property without due process of ' law.
    Appeal from an order denying a motion to vacate an order permitting substituted service of a summons.

      H. Aplington, for app’lt; James Byrne, for resp’t.
   Follett, J.

This action was brought to recover of the appellant the amount due on a bill of exchange, dated January 18,1893, drawn and payable at the city of New York, and indorsed by the defendant at that city. When the bill was drawn, the defendant was, and has ever since remained, a resident citizen of this state. The summons in this action was issued August 10, 1893, and on the 23d of the same month an order for the substituted service of it on the defendant was granted, pursuant to § 435 of the Code of Civil Procedure. August 23, 1893, the summons and order were served on the defendant by leaving copies of them at his residence, with a person of proper age, pursuant to said order and § 436 of the Code. The defendant failed to appear in the action, and September 16, 1893, judgment was entered against him, which he moved to vacate on the following grounds:

“ (1) That the court had not at the date the said order for substituted service was made, nor at the date said judgment was rendered; jurisdiction over the person of said Horace K. Thurbur; (2) that said judgment, being a personal judgment, is void, as there, has been no personal service of the summons herein upon said Horace K. Thurber; (3) that § 435 of the New York Code of Civil Procedure, under which said order for substituted service was made, is unconstitutional, being contrary to the provisions of article 5 and article 14 of the amendments to the Constitution of the United States: (4) that said_ judgment was so rendered against said Horace K. Thurber without due process of law.

The motion was denied, and the defendant appeals from the order. The appellant’s sole point, which he has divided into four, is that the court did not acquire jurisdiction to render a personal judgment against him, not because all of the steps required by the Code were not duly taken, but because the legislation establishing the procedure for the substituted service is violative of the provision of the Constitution of the United States, and of this state that a person shall not be deprived of his property without due process of law. A citizen of a state is bound by its laws, both substantive and those regulating judicial procedure. Acquiring jurisdiction of resident defendants by constructive service of process is a proceeding according to the course of the common law, and is due process of law. This kind of service was not unknown to the common law, but was an authorized mode, by which the English courts of law and of equity, from the earliest times, acquired jurisdiciion of resident defendants. Bl. Comm. 383, 445. Anciently, if a citizen refused to appear and answer to the process of the courts of England, he was outlawed, and his property taken to satisfy the just demands of his creditors. 2 Reeves, Eng. Law),Finlason’s Ed.), 308; 6 Bracton (Twiss’ Ed.), 477, et seq.; 2 Sell. Pr. (1st Amer. Ed.), 277. In this state, outlawries in personal actions were regulated by chapter 9 of the Laws of 1787, and the practice in such cases is stated in chapter 10, Wyche’s Pr., the first work published on the procedure of the .courts of this state. Every sovereignty has power to regulate the procedure of its courts, and prescribe the rights which plaintiffs may acquire, and the liabilities which may be imposed on resident defendants, by judgments recovered in its tribunals. Hunt v. Hunt, 72 N. Y., 217; Rigney v. Rigney, 127 id., 408; 40 St. Rep., 210; Mackay v. Gordon, 34 N. J. Law, 286; Pig. Judgm., 130; Schibsby v. Westenholz, L. R., 6 Q. B., 155. In the cast last cited, Lord Blackburn said:

“ How, on this, we think some things are quite clear on principle. If the defendants had been, at the time of the judgment, subjects of the country whose judgment is sought to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been, at the time when the suit was commenced, resident in the country, so as to have the benefit of its laws protecting them, or, as it is sometimes expressed, owing temporary allegiance to that country, we think that its law would have bound them.”

This was said in an action brought to recover on a judgment recovered against the defendants in France. The defendants were not domiciled in France, nor subject to the jurisdiction of the French court. They had no notice nor knowledge of the proceedings, and did not appear in the action. All countries having judicial systems provide modes by which resident citizens can be bound by the judgments of its courts without personal service of the process, and abstracts of the" statutes of many states and countries will be found in Piggott on Judgments.

The motion to vacate the order for substituted service was made upon the following grounds:

“ (1) That this court had and has no jurisdiction over the person of defendant Horace EL Thurber herein; (2) that the papers upon which said order was granted were not sufficient to authorize the court or judge to grant said Order; (3) that the affidavits produced herein on behalf of said defendant Horace EL Thurber disclose the fact that the place of sojourn of said Horace EL Thurber could have been ascertained by the plaintiff or its attorneys; and for such other or further relief as to the court may seem just and proper.”

We think that the papers upon which the order was granted were entirely sufficient to authorize the court to grant it, and that the affidavits upon which the motion was heard do not disclose the fact that the place of sojourn could have been ascertained by the plaintiff or its attorneys. The opinion upon this question, delivered at special term, which was the only one discussed by the learned judge, clearly shows that sufficient facts were shown by the moving affidavits to justify the order.

The orders should be affirmed, with ten dollars costs on each appeal.

All concur.


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    In the Matter of the Estate of John Perkins, Deceased.

      (Supreme Court, General Term, First Department,

      Filed Jannary 12, 1894.)

      1. Jurisdiction—Subrogate.
    A surrogate has, upon an accounting, jurisdiction to construe a will, where such action is necessary to determine questions arising thereon.
    3. Same.
    An incorrect construction will protect an executor as to payments made pursuant to such decree. ‘
    Appeal from a decree settling the accounts of an executrix.

      George 0. Lay, for app’lts; Davies, Short & Townsend, (Edward S. Sapallo, of counsel), for resp’t.
   Van Brunt, P. J.

It appeared that one John Perkins died, leaving a last will and testament, whereby he appointed his brother, George R Perkins, trustee of his will, and made certain provisions for his widow and other persons. In August, 1876, the executors filed an account, upon which citations were duly issued, and served upon all the parties interested in the estate, iucluding the appellants; and such proceedings were had • that upon the 5th of April, 1877, a decree was entered, settling the accounts of the executors, and a provision made for settling the trust of which the trustee was appointed, and directing the payment out of the estate of a sum equal to the semi-annual interest upon the said trust fund. The appellants, although cited and duly served upon this accounting, did not appear. On the 2d of May, 1883, a second accounting was had. The accounts-of the executrix were settled, and a second decree entered, containing the-same provisions; the record showing that the appellants were duly served by publication, and served by mail, of the citation to attend such accounting. On the 31st of January, 1893, the executors filed a third account, which claimed credit for payments pursuant to the decrees of the surrogate. The appellants appeared, and filed objections to such items in said account, and also objected to portions of the former decree entered April 5, 1877, on the ground of want of jurisdiction, and on the further ground that such provisions were inconsistent with the terms of the will, and operated to dissipate the principal, to their detriment. They also made a motion to set aside so much of said decree entered upon said accounting as related to this trust, upon the same grounds as those upon which objections were filed to the accounts. The surrogate, after hearing the parties, granted the application to declare null and inoperative, as to the future administration of the estate, so much of the former decrees as related to the trust fund, but declined to affect the validity of the former accountings, or the subsequent payments made pursuant to said decrees, and from this decree the present appeal is taken. The ground of the appeal is that the surrogate had no jurisdiction to make the decrees of April, 1877, and May, 1888, as they were contrary to the provisions of the will, and deprived the plaintiffs of their rights as remainder-men.

The objection is raised that this appeal cannot be heard, because no findings were requested to be made by the court, no exceptions filed to the rulings of the court, and no decision in writing filed, stating separately the facts found, and the conclusions of law, as required by the practice. We would think that this objection was well taken, as this whole proceeding arose upon an accounting before the surrogate. His rulings related to the matters contained in that account, and in the settlement of the account he had jurisdiction to construe the will. Such being the proceeding before the surrogate, the mere fact that there was injected into it a motion to set aside previous decrees in no way changed the nature of the proceeding. It was an accounting over which the surrogate had jurisdiction, and for the review of which the well-settled rules of practice require the procedure which has already been intimated. But it is not necessary to limit our disposition of this case to this point There is no question but tliat, if the surrogate was absolutely without jurisdiction to make the decrees in question, such decrees are no protectiqn to the executors in the administration of the estate. But it has been well settled by numerous adjudications that upon an accounting the surrogate has jurisdiction to construe the will, where the construction is necessary to determine questions arising upon the accounting, and that, with all the parties in interest present, the surrogate may construe the provisions of a will, and determine the meaning and validity of any of them, whenever such determination is necessary in order to make his decree as to distribution. To sustain the contrary of this proposition, the case of Johnson v. Lawrence, 95 N. Y., 154, is cited. But it was there held that the surrogate had no authority to construe the effect of the will upon the future attitude of the executors, because no questions of distribution had been reached, and no separate or distinct trust fund settled and fixed. No trust had been judicially constituted, and the order obeyed. But the authorities are uniform that where a question of distribution arises, and the distribution of the trust fund is necessary to be presently done, the surrogate has jurisdiction to provide for those things, and to determine as to the method and manner of distribution. In these previous accountings the question was presented to the surrogate in regard to the rights of the beneficiaries in this trust fund directed to be constituted by the will. The surrogate made a decree in reference thereto, construing the will in that particular. The executors made disbursements in accordance with that construction. The surrogate approved of those disbursements, and, clearly, his decree was within his jurisdiction, although it may have been erroneous. In every case of the construction of a will by the surrogate in proceedings for an accounting, he maybe said to be without jurisdiction, if his construction is contrary to the will of the testator. But, where the right of appeal does not exist until that decree is modified by some affirmative action upon the part of the surrogate, certainly such decree is a protection to the executor acting thereunder, precisely the same as though such decree had been made upon the probate of the will, where the validity, the construction, or the effect of any disposition of personal property contained in the will offered for probate is put in issue. Prior to 1870 the surrogate had no jurisdiction to entertain any such question upon probate; but in order that the executor might, from the commencement of his duties, be protected in the administration of the personal estate of a deceased, power was conferred upon the surrogate to pass upon the validity, construction, or effect of any disposition of personal property, if the same was put in issue, and these questions the surrogate must determine upon rendering his decree admitting the will to probate. Code § 2624. Now, it is clear that all that this legislation intended to do was to confer upon the surrogate, upon the probate of a will, the power to do that which he could do upon an accounting. In the case at bar, when these decrees were made, this question of construction came up; and, as has been already stated, although the surrogate may have misconstrued the will, yet his decree was not absolutely void for want of jurisdiction.

We think, therefore, that the decree should be affirmed, with costs.

All concur.


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    The Holly Manufacturing Company, Resp’t, v. Clarence H. Venner, Impl’d, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Contempt—Subpoena duces tecum.
    The court may punish for contempt a person who fails to produce books pursuant to a subpoena duces tecum issued by a judge.
    2. Same—Fines.
    The imposition of fines is not limited to cases where actual loss or injury is not shown.
    3. Same—Excuse.
    The excuse for disobeying the subpoena duces tecum, though sufficient if true, was held, in this case, not to be worthy of belief.

      Appeal from an order adjudging defendant to be guilty of •contempt.

      Boot & Clarke (,Samuel B. Clarke and Bronson Winthrop, of counsel), for app'lt; Ellsworth, Potter & Starrs (David McClure, of •counsel), for resp’t.
   Van Brunt, P. J.

The appellant, being under examination in supplementary proceedings, was subpoenaed to produce certain individual and firm books which had been under his control. He, having failed to produce these books gave as an excuse that he was unable to find them, they having mysteriously disappeared. The court, disbelieving this excuse, found the appellant guilty- of ■contempt, and that his misconduct in not producing the books was calculated to and actually did defeat, impair, impede, and prejudice the rights and remedies of the plaintiff, and imposed as a fine for his misconduct, by way of punishment, the sum of $250 with ten dollars costs of motion, and committed the appellant to the ■county jail, to be there detained until he should produce the books .and pay the fine. From this order this appeal is taken. The grounds upon which this appeal is urged are: First, that the appellant’s excuse for not producing the books was, if true, manifestly sufficient; second, that there was no reason for doubting the excuse; third, that the fine of $250 was unauthorized; and, fourth, that the court had no power to punish for the failure to produce books pursuant to a subpoena duces tecum; and fifth, that the subpoena was not pioved to have been properly served.

In respect to the last point, it maybe said that no such objection •seems to have been taken upon the return of the subpoena, and, the court having adjudged that the subpoena was duly served, it is incumbent upon the appellant to show that there was some foundation for the objection, as it does not appear from the record but that the proper witness fees had been paid. It appears upon the face of the record that this subpoena was served in the courthouse, and there is no proof but what sufficient fees were paid in order to make it a compliance with the law, even if such a question can now be raised.

As to the power of the special term to punish for the failure to produce books pursuant to a subpoena, it is claimed that in all •cases where a party has been punished for contempt in such proceedings it has been because of disobedience to an order or oral direction of a judge or referee, and that - the case of a subpoena duces tecum is not provided for. The subpoena in this case was issued by the judge himself before whom the proceeding was then pending, and seems to have all the dignity, certainly, of an oral direction, and also of a written order. It was a direction of the judge before whom the proceeding was then pending to produce the books.

The next point is that the fine, of $250 was unauthorized, because such a fine can be imposed only where it is not shown that an actual loss or injury has been produced, whereas, in this case, it is adjudged that the appellant’s misconduct did defeat the rights and remedies of the judgment creditor, and that this is a finding that there was actual loss and injury; and, this being so, íbe only course open to the court was to proceed to assess the-damages, and lay an indemnity fine equivalent thereto. If the-point is well taken under any circumstances, then under no circumstances, unless actual loss or injury is proved, can a fine ever be imposed, notwithstanding the provisions of § 2284, where it says:

“ Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant’s costs and expenses, and two hundred and fifty dollars in addition thereto.”

The court is not authorized to convict of contempt, and to impose any punishment, unless it adjudges that the offense was; calculated tor or that it actually did, defeat, impede, impair or prejudice the rights or 'remedies of the party to a special proceeding. Section 2281. That is to be determined in every case before any punishment whatever can be inflicted, and it is idle to-suppose that it was intended that that should be an adjudication establishing actual loss and injury. The mere reading of § 2281 shows that the adjudication covers every case. But there may be-cases where actual loss has been produced, and which is established to an extent far beyond the amount of the fine authorized to be imposed by the latter part of § 2284; and it is in those cases that the court is authorized to impose a larger fine. But where there is no proof of actual loss and injury, although the court has found that the misconduct was calculated to or did defeat, impede, impair or prejudice the rights or remedies of the party, a fine of $250 may be imposed.

We come now to the question as to the sufficiency of the excuse offered by this appellant. It certainly is one of the most remarkable Qver offered to a court of justice, and that the learned judge below disbelieved the whole story is not surprising. We find that this appellant had been keeping books as a member of a firm, and also individually; that some time prior to the initiation of this proceeding, because he had no safe in which to keep his partnership books, he sent them to Boston, where they could be put into a vault. His individual books he allowed to remain here. They were removed from one office to another. He states that he did not see the individual books after the removal, but. his clerk states that he saw them in the office after the removal. They cannot be found. He then goes to Boston for the purpose of getting the books that had been put into a vault there, and they are gone, cannot be found, mysteriously disappeared. And the appellant desires us to believe that, because it was possible that certain other parties in other litigations had some interests hostile to the appellant, they had stolen his books. It appears also from the affidavit furnished by the brother in whose office this vault was situated that he left the door open frequently, and went out of the office, and left it alone, and the books may have been taken at such a time-as that; but there is not the slightest evidence that they were ever missed until they were wanted in this proceeding. This excuse may have had some color of credibility if the books in only one place had disappeared. But here. we find that the books wanted that were in the appellant’s office here are gone, stolen by these hostile interests,—and the books are stolen from the vault of the office in Boston by the same parties. This coincidence is altogether too remarkable. It cannot be that these people were so eager to get these books that they were safe neither in the appellant’s office in Hew York, nor in his brother’s vaults in Boston. The coincidence of the disappearance in these books carries with it unequivocal evidence of design. They would not disappear from both places, when they were wanted, without intelligent help. We think that the excuse offered would have been sufficient if true, but we do not believe that any intelligent man can help attributing the coincidenee mentioned to design. The order should be affirmed, with costs,


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    Benjamin H. Howell et al., Resp’ts, v. James P. Bennett, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Pleading—Failtjbe to dent.
    In an action for fraudulent representations, failure to deny an allegation of the complaint as to the amount of damages does not admit them.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial made on the minutes of the court.

      Denis A. Spellissy and Joseph L. Keane, for app’lt; Blackwell Bros. (Frank E. Blackwell, of counsel), for resp’ts,
   Follett, J.

In 1890 the plaintiffs were wholesale dealers in teas and coffees in the city of Hew York, and the defendant was a, retail dealer in those articles, and in groceries, in the same city. On the 6th of May, 1890, the defendant, for the purpose of obtaining credit, wrote the plaintiffs that he was worth from ten to fifteen thousand dollars over and above all liabilities, and was doing a prosperous business. Upon this statement the plaintiffs sold on credit to the defendant, on May 6th, coffee, at the agreed price of $4,371.57, which he subsequently paid. After-wards, and before June 28, 1890, the defendant wrote the plaintiffs as follows:

“ Hew York,-.
“ Mess. H. B. Howell, Son & Co.—Gentlemen: I wish to amend my former statement as follows : My assets exceed my liabilities by not less than twelve thousand dollars. This does not include any horses, trucks, wagons, machinery, fixtures, or good will of my stores. My business is paying $15,000 yearly for past 18 months.
“ Resp’y,
J. P. Bennett.”

After receiving this statement, the plaintiffs sold to the defendant teas and coffees for the following sums, on the following dates, on a credit of 90 days: June, 28,1890, $2,971.50: July 10,1890, $3,367.35; July 14, 1890, $495.38; July 24, 1890, $1,152.34; September 25, 1890, $2,468.42. The goods sold on the 28th of June, 1890, were paid for, but the subsequent bills have not been paid. On the 7th of October, 1890, the defendant made a general assignment. This action is brought to recover damages, on the ground that the defendant obtained the goods by means of false representations in respect to the amount of his property, and of his ability to pay. It should be observed that this action is not to recover damages for the conversion of the goods, the plaintiffs not seeking to disaffirm the sales and recover the value of the goods, but damages for the fraud. It is alleged in the complaint, “that the value of said goods, wares and merchandise so sold and delivered as aforesaid, in July and September, was the sum of $7,211.31, and no part of the price or value thereof has been paid." On the trial one of the plaintiffs testified to the sale of the four bills last above mentioned, which aggregate $7,479.49, which is $268.18 more than the amount stated in the complaint, which is evidently the value of certain goods referred to by the judge, in his charge to the jury, as having been replevied by the plaintiffs. On the trial a witness sworn for the plaintiffs, who had charge of the replevin action, testified that they recovered teas of about the value of $230. The assignee, who was called by the plaintiffs, testified that the plaintiffs replevied goods of the value of three or four thousand dollars. The defendant testified, and in this he was not contradicted, that he returned about seventy-six bags of coffee, worth about $2,200; and the the plaintiffs' witness Steven testified that warehouse orders for coffee were returned by the defendant to the plaintiffs shortly before his failure, but he did not know their value. One of the plaintiffs testified that the defendant gave his notes for the sales made in July. The foregoing is all of the evidence bearing upon the question of damages which was given upon the trial. Upon the question of damages the court instructed the jury as follows:

“ I have mentioned the sum of $2,468.42. A larger sum has been stated to you, bút I withdraw from your consideration the amounts mentioned, because the defendant has given notes for those amounts, and there is no evidence before you showing where the notes are. They have ' not been produced on the trial, and they may be outstanding now, in the hands of a man who would have a right to sue the defendant, and to recover upon them. Therefore, I have withdrawn those from your consideration, the three items, of $3,367.35, $495.38, $1,152.34, and I leave only for your consideration the last item, of $2,468.42, for which no note was given. If you come to the conclusion to find a verdict for the plaintiffs, then you may add to that sum interest from the 25th of September, 1890.”

At this point the plaintiffs’ counsel asserted that the damages were admitted in the pleadings. The following are the allegations in the complaint bearing upon this question:

“Fifth. That the value of the said goods, wares and merchandise so sold and delivered as aforesaid was the sum of $7,211.31, and' no part of the price or value thereof has ever been paid. Sixth, That by reason of the premises the plaintiffs have been damaged in the sum of $7,565.28.”

These allegations are not denied in the answer. The court then charged the jury:

“ I withdraw what I have said as to ’the amount of ,damages. * """ The defendant admits certain damages, amounting to $7,483.49, from which is to be deducted the sum of $988.97, the amount of a dividend received, and also the further sum of $272.18, the amount of goods replevied. On that balance you may, if you see fit to award any verdict for the plaintiffs, allow interest.”

The jury returned a verdict for $7,155.69. The defendant’s counsel did not request that the value of the goods replevied be submitted to the jury, nor did he ask that the jury be instructed to take into account the value of the goods returned by the defendant; but he did take an exception to that portion of the charge instructing the jury as to the amount of the verdict, provided they found one. We think this exception is sufficient to raise the question that an error was committed in submitting the question of damages. In this action the measure of the plaintiffs’ damages would be the value of the goods sold, and not paid for or returned. If, as testified to by the defendant, the goods of the value of $2,200 had been returned, this sum should have been deducted. Again, in an action of this kind, the plaintiffs should not be allowed to recover the value of the goods, without surrendering, or offering to cancel, the notes which were given for them.

It is alleged that, the fifth and sixth divisions of the complaint not having been denied, the amount of the plaintiffs’ damages was admitted. In an action arising out of a tort, and sounding in damages, the defendant, by failing to deny the amount of damages alleged to have been sustained, does not admit them; and the plaintiff must prove the amount sustained by him, or he will be entitled only to nominal damages. Connoss v. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 id., 13; McKensie v. Farrell, 4 Bosw., 192 ; Stuart v. Binsse, 10 id., 436; Gilbert v. Rounds, 14 How., 46 ; Vanderslice v. Newton, 4 N. Y., 130 ; Woodruff v. Cook, 25 Barb., 505; Sedg. Dam. (8th ed.), § 1260; Pom. Rem. & Rights, § 617; Moak’s Van Santv. Pl., 798; Boone, Code Pl, § 75 ; Abb. Tr. Brief, §§ 39, 536, 540.

The court erred in holding the defendant bound by the undenied allegations respecting the damages contained in the complaint. The jury should have been permitted to take into account the value of the goods returned voluntarily, and through the action in replevin. It is quite impossible to determine from the record upon that theory the damages in this case were assessed, and, were it not for the statement that the case contains all of the evidence, we might assume that some evidence was given, or some admission made which would sustain the verdict; but, from the record as made up, we are of the opinion that an error was committed in the assessment of damages which entitles the defendant to a new trial. The judgment and order should be reversed, and a new trial granted, with costs to the appellant, to abide the event.

All concur.


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    Francis W. Lestrade et al., App’lts, v. Gonzalvo De Cordova et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Money had and beoeived—Action fob.
    A person has no title or claim to more of a remittance than is on account of goods furnished by him, and, after such amount is paid to him, he cannot recover the balance of such remittance from a party to whom it has been paid on account of just debts owing to him by the receiver.
    Appeal from a judgment dismissing the complaint upon the merits.

      Hatch & Wickes (Thomas P. Wickes, of counsel), for app’lts; Lockwood & Hill (Luke A. Lockwood, of counsel), for resp’ts.
   Follett, J.

This action was brought to recover from the defendant Horace F. Burroughs, Jr., the sum of $2,957.23, which the plaintiffs allege was derived from the sale of their property by G. De Cordova & Co., and by them wrongfully paid to him. The plaintiffs are, and for several years have been, partners under the name of Lestrade Bros., and engaged in business at the city of New York, and for several years before January 18,1890, Gonzalvo De Cordova, Winchester B. Smith and Frederick Berenbroick were partners under the name of G. De Cordova & Co., and engaged in business at the city of New York. The partnership was a limited one, organized under the laws of this state. Cordova, and Smith were the general partners, and Berenbroick the special partner. January 12, 1888, these firms entered into the following contract:

“ Memorandum of agreement, made at the city of New York, the twelfth day of January, one thousand eight hundred and eigty-eight, by and between the firm of Lestrade Brothers of said city, and G. De Cordova & Co., of the same place. Whereas, the parties to this agreement have had business transactions with each other for several years last -past, and G. De Cordova & Co. are largely indebted to the firm of Lestrade Brothers, etc., to change such business arrangements as follows: G. De Cordova & Co. will open a new account in their books with Lestrade Brothers, wherein and whereby G. De Cordova & Co. will account to Lestrade Brothers, as their agents, for all merchandise ordered by G. De Cordova & Co., or delivered for their account, subsequent to the date of this agreement; and that G. De Cordova & Co. will furnish an account sales for such merchandise so ordered from or delivered by Lestrade Brothers, with the amounts due therefor and the time of payment, which amounts G. De Cordova & Co. shall receive for and pay to Lestrade Brothers, with the understanding and agreement that G. De Cordova & Co. have and hereby do guaranty the payment for all goods ordered or shipped under the terms of this agreement, and in accordance with the account sales rendered every fifteen days for said shipments.. And that the said G. De Cordova & Co. shall retain the right to make such sales and bill such goods in their own names, but nevertheless as undisclosed agents of said Lestrade Brothers. Witness our hands and seals, at the time and place first above mentioned.
“ G-. De Cordova k Co.
“ Lestrade Brothers.
‘In the presence of witness, H. D. Seamah.”

Gr. De Cordova & Co. were engaged in shipping butter, cheese, lumber, and other merchandise to the island of Jamaica, where they had an agent. Lestrade Bros, were dealers in butter and cheese, and it is alleged in the complaint, and found as a fact, that between November 1, 1889, and January 10,1890, they, pursuant to said contract, shipped butter to firms and persons at the city of Kingston, in said island, of the value of $3,116.40, for which sum Gr. De Cordova & Co. became indebted and bound to pay pursuant to said contract. Horace F. Burroughs, Jr., was engaged in furnishing G. De Cordova & Co. with lumber for shipment to Kingston under a contract like the one hereinbefore set forth. It is also alleged in the complaint, and found as a fact, that January 16, 1890, the agent of G. De Cordova & Co. at Kingston, transmitted to that firm by cable $14,465.95, which was collected from persons and firms to whom property had been shipped; $867.58 of this sum was collected from persons and firms who were indebted to G. De Cordova & Co., for butter shipped by the plaintiffs. This fact was found by the court upon the testimony of Gonzalvo De Cordova, a witness called by the plaintiffs. The remainder was collected from persons indebted to G De Cordova & Co., some of it being for lumber furnished them by Horace F. Burroughs, Jr. Upon the receipt of said sum ($14,465.95) it was deposited in the Commercial Bank of New York to the credit of G. De Cordova. From this sum the plaintiffs were paid $1,819.56 and Horace F. Burroughs $5,200, and the remainder was paid out to various creditors of the firm of G. De Cordova & Co. On the 18th of January, 1890, G. De Cordova k Co. became insolvent, and an action was brought to wind up the affairs of the firm, in which a receiver was appointed.

Only $867.58 of this remittance of $14,465.95 was derived from butter shipped by the plaintiffs under the contract, and they, having received $1,819.56 out of this remittance, have no title to or equitable claim on that part of the remittance which was paid to Burroughs on account of just debts owing to him by the firm. The payment to Burroughs was not in contravention of the statute forbidding preferences by insolvent limited partnerships. Part of the money was derived from the sale of lumber furnished by Burroughs to G De Cordova & Co. under a contract similar to the plaintiffs’, and the remainder in payment of a sum which Burroughs had paid in satisfaction of the notes of G. De Cordova & Co. upon an express agreement that it should be paid out of the next remittance from Jamaica.

The judgment should be affirmed, with costs.

All concur.


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    Daniel W. McClain, Pl’ff, v. Benjamin Schofield et al., Def’ts.

      (Supreme Court, General Term, First Department

      Filed December 15, 1893.)

    Account stated—What is.
    A customer’s acceptance of a statement of accounts from his commission agents and of payment of balance shown due makes the accounts between them stated at that date.
    Motion for a new trial, on exceptions ordered to be heard at general term in the first instance.

      Abraham Gruber (Eugene M. Sanger, of counsel), for app’lt; Strong db Cadwalader, for resp’ts.
   Parker, J.

We agree with the trial judge that there was an account stated between the plaintiff’s firm and defendants ; thereafter a payment by defendants to plaintiff of the amount which such account showed to be due; and that a dismissal of the complaint was necessarily required. The defendants were carpet manufacturers in the city of Philadelphia. Plaintiff was one of a firm of commission agents for the sale of carpets in the city of New York, and has succeeded to the interests of the firm in the claims which are the subject of this action. About the 1st of December, 1887, an agreement was entered into between the parties, by whick plaintiffs firm became defendants’ agents for the sale of Wilton and Body Brussels carpets ; the commission agreed upon being 3 per cent, for all sales made at the standard price' of the season for such goods, while, for goods sold at less than the standard price, it provided for a commission of 1 1-2 per cent., the term of the agreement to continue as long as mutually agreeable. Plaintiff’s firm continued to sell goods as the agent of defendants until November, 1890, and the first cause of action alleged is for the balance of commissions which plaintiff claims to be due and unpaid on account of goods sold between the 1st days of December, 1889, and November, 1890. He alleges that he had been allowed and paid only 2 per cent, commissions on goods sold at standard prices during that period, while he was entitled to 3, and it is the sum which 1 per cent, on the gross sales would produce that he claims to recover under the first cause of action. Defendants’ position was that the-agreement had been modified or abrogated, and, by the amended or substituted agreement, plaintiffs firm were to receive but two per cent., the amount of which had been paid prior to the commencement of this action; that after the change in the agreement touching the amount of the commissions, the defendants sent monthly statements to the plaintiff’s firm, covering all the business transactions between- the parties, in which the commissions of the plaintiff’s firm were openly and plainly stated to be 2 per cent., and the aggregate amount of such commissions, upon such basis, was also stated; that payments in accordance therewith were made, and receipts for such amounts given by plaintiff’s firm—by reason of which facts the defendant contended that the accounts between them had become stated, and were no longer the subject of investigation by the court, in the absence of fraud or mistake. Manchester Paper Co. v. Moore, 104 N. Y., 680; 5 St. Rep., 747.

A cursory examination of the dealings between the parties during the period embraced in the alleged first cause of action will make it apparent that this is not a case in which regret should be occasioned because of the necessity of applying the rule of an account stated. The plaintiff’s firm had full notice of the defendant’s determination not to pay them but 2 per cent, in advance of the performance on their part of nearly, if not quite, all the work for which they claim not to have been fully compensated, if indeed they did not fully assent to it. As has already been observed, the contract expressly provides: “ This agreement to continue in full force and effect so long as mutually agreeable.” Thus, by its terms, either party had a right to terminate the agreement at will. In December, 1889, defendants wrote plaintiff's firm that they would not put their price down to 871-2 cents a yard, but where there was a large trade, and plaintiff’s firm chose to take a 2 per cent, commission, they could sell at 90 cents, with a rebate of 2 1-2 per cent, off; in substance, that they declined to sell at 87 1-2, and pay 3 per cent, commission. The sales which are the subject of the first cause of action are all made to four firms, to three of which the sales were made at 87 1-2, while to the other firm the sale was at 90, with a rebate of 2 1-2 per cent. The plaintiff replied by letter dated January 10, 1890, in which he said:

“You wrote me that you would allow us two per cent, at eighty-seven and one-half. We are willing to do the Claflin, Kennard and Artman on that basis for this season, but, further than that, I, speaking for myself, will not go, and I think Fred feels as I do. I shall let their trade go. * * * It is for you to decide if we are to take orders as others are doing, or let them pass.”

It thus appears that there was a complete meeting of the minds of the parties as to the amount of commissions to be paid on sales to three parties named, and as to other sales there was an assertion by the defendants that they would not pay over two per cent, commissions, and a statement on the part of the plaintiff that he should let the other trade go. Thereafter plaintiff’s firm continued to sell defendants’ goods to the three firms which they had expressly consented to sell to for a commission of two per cent., and to another firm, which they did not mention in their letter of consent. Defendants monthly prepared and sent to the plaintiff’s firm a statement showing the entire sale made for the month, and the commissions of plaintiff’s firm thereon, on the basis of two per cent. The statements were received by plaintiff’s firm in due course of mail and by them produced on the trial, in compliance with defendants’ notice to do so. Payments were made from time to time, and were duly entered upon the statements sent to plaintiff’s firm. They were made by the checks of defendants, and plaintiff’s firm gave receipts for the money. Plaintiff made no ol-j lotion to any of these statements of account, except possibly those of February and March, 1890. He says he objected to the refusal of defendants to allow but two per cent, commissions upon the sales to Bauman Bros., and that the objection was by letter; but he failed to produced a copy of the letter, or make such proof of its mailing as would raise a presumption that the defendants received it. Assuming, however, that he did object to the item, the fact remains that the defendants continued to send monthly statements of account, which necessarily asserted the correctness of that item on each succeeding month, down to November following, after which he received from defendants the money which the last statement asserted to be due to him. Aside from the fact that he made no objection to the further statemants of account, there is direct evidence of his assent to their correctness. On the 5th day of June, 1890, he wrote the defendants a letter in which he said :

“ Please send us a check for $2,000, which will be a -small advance. It will take that to start us out. As near-as I can tell, .there is between $1,000 and $1,700 due us.

Referring to the statements of account for the month of May, it appears that plaintiff’s commissions for April and May amounted to $2,770.17. These commissions were 2 per cent of gross sales, including sales of Bauman Bros. And, further, that, upon the 26th of May, the plaintiff received from the defendants $1,000, leaving' due him, according to the statement, a balance of $1,770. a little more than plaintiff’s estimate. Whether he objected to the accounts of February or March or not, he was concluded by the ■statement of account furnished on July 9th, to which he did not object, but, on the contrary, received payment of the balance shown to be due him: for that statement of account superseded those rendered before, and his acceptance of payment without objection amounted to an assent on his part, and made the accounts between them stated at that date. Clark v. Mechanics' Nat. Bank, 11 Daly, 239; Quincy v. White, 63 N. Y., 370; Knickerbocker v. Gould, 115 N. Y., 533 ; 26 St. Rep., 651; Jugla v. Trouttet, 120 N. Y., 21; 30 St. Rep., 182. After the July statement, the defendants continued to render monthly ■statements down to November following, after which plaintiff was paid the amount appearing to be due to him by the last statement. He made no objection when he received it, nor did he object when the money was paid to him, nor at any time thereafter, so far as the record discloses, until the commencement of this action, in February, 1891.

The second cause of action was a claim for commissions upon goods sold to Deimel Bros., of Chicago, amounting to $5,986.25, in December, 1889. Deimel Bros, became insolvent immediately after the sale, and no part of the purchase price was paid. Plaintiff claims that, under the contract, he was entitled to his commissions, notwithstanding the sale which he made was to a failing firm, by reason of which his principal lost the entire amount of the purchase price. As we view it, it is not for us to determine whether his contention be correct In the very month of the sale (December, 1889) the defendants, in their statement - to plaintiff’s firm, which was received and retained without objection, deducted from the gross sales made by plaintiff’s firm, and which constituted the basis upon which their commissions were estimated in that statement the amount of the sale to Deimel Bros. Thereafter, and prior to the commencement of this action, plaintiff made no objection to the statement in such respect, and for a period of 10 months continued to procure sales for the defendants, they submitting monthly statements of account to him, until November 20, 1890 when a final statement was made, and defendant paid the balance therein stated to be due. The cases we have already cited furnish adequate authority for the determination of the trial court that as to such item the account had become stated. Plaintiff’s exceptions should be overruled, and judgment ordered for defendants, with costs in both courts. All concur.


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    Samuel W. Milbank, Pl’ff, v. John W. Welch et al., as Trustees, etc., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    1. Corporations—Insolvent.
    A voluntary transfer of its property by an insolvent corporation made for the benefit of its directors and stockholders is in violation of the statute.
    2. Same.
    Such transfer to secure a debt to the transferee, incurred while he was a director, is not a violation of the statute if he has ceased to be such at the time of the transfer.
    3. Same—Proof of insolvency.
    Proof that the corporation, at the time of the transfer, has failed to pay one or more of its obligations at maturity, is not sufficient to establish insolvency.
    Submission of a controversy on an agreed statement of facts pursuant to § 1279 of the Code.

      Smiths Perkins (Geo. Putnam Smith, of counsel), for pl’ff; Otterbourg, Jenks S Springs, for def’ts.
   Parker, J.

Plaintiff, as receiver of the property of Alexander, Burney & Chapin, a corporation organized under the laws of the state of New York, demands judgment that an assignment of accounts made by it September 1, 1893, be adjudged invalid, because in violation of § 48, chap. 688, Laws 1892, which reads as follows:

“ No corporation which shall have refused to pay any of its notes or other obligations when due, in lawful money of the United States, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors, or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or it or director or stockholder when the corporation is insolvent or its insolvency is'imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation shall be valid.”

On the 16th day of July, 1891, the corporation being in need of funds, five of its stockholders and directors, P. H. Alexander, C. E. Chapin, A. A. Patton, John W. Welch and Luke A. Burke, entered into an agreement to loan it the sum of $10,000 in cash, each of said directors furnishing $2,000 of the money loaned. , An agreement in writing was executed by the corporation, reciting its intention to borrow the money; to give therefor its promissory notes payable on the 16th day of July, 1892, with interest payable semi-annually; to secure the payment of the notes by an assignment and transfer to Welch and Burke, as trustees, of certain accounts, amounting in the aggregate to not less than $15,000; and providing that the trustees should have the right to receive any and all moneys paid or collected upon said accounts at any time, and to hold the moneys as part security for the notes, or apply the same from time to time in payment thereof; “it being agreed, however, that thé company may from time to time, there being no default on the notes, or any of them, substitute other accounts in the place of any Recounts so transferred and assigned.” On the same day, and after the execution of the agreement, the directors loaned to the corporation the sum of $10,000 in cash, and received its notes executed in conformity with the agreement. At the same time the corporation assigned to Burke and Welch, the trustees named in the agreement, accounts amounting to $15,000, in accordance with the stipulation contained in the contract. The trustees never applied any of the money received from the accounts in payment of the notes, but, instead, it was turned over to the corporation, which, from time to time, made new assignments of accounts to take the place of those which had been collected, and applied to the use of the corporation. The last assignment was made September 1,1893, at which time the corporation had refused to pay certain of its matured obligations. The notes to the directors became due July 15,1892, more than a year prior to the last assignment of accounts of which plaintiff complains, at which, according to the express provisions of the agreement, it was the duty of the trustees to apply the moneys in their hands to the payment, pro rata, of said notes. This, as we have observed, they did not do, but, instead, turned over the moneys to the corporation, and took new assignments of accounts in place thereof.' For this there was no authority in the agreement, which only provided for the substitution of other accounts while the corporation was not in default on the notes. The situation in which the parties found themselves on the 1st day of September, 1893, was that the defendants were the holders of past due notes, which the trustees, by virtue of the agreement and transfer of accounts, had had an an opportunity to secure the payment of, but had not availed themselves of it. So a further transfer of accounts^ were made, and thus they attempted to bring about that which seemed to them equitable and just, because merely a transfer of accounts to take the place of those which had been collected and applied to the use of the corporation, but was nevertheless in violation of that provision of the statute which forbids a transfer of any of the corporate property to any of its officers, directors, or stockholders, directly or indirectly, for the payment of any debt, when, at the time of doing it, the corporation shall have refused to pay any of its matured obligations. A very different question would be presented, if the agreement, instead of limiting the period within which substitution of accounts could be made to the time when the corporation should be in default on the notes, and providing that at maturity the trustees should at once apply the money in their hands towards their payment, had provided that such substitution should continue from time to time until the notes were actually paid. Were such the case, the question would be presented whether a transfer of the property of a corporation to one of its directors or stockholders after its refusal to pay any of its notes or other obligations when due, if done in pursuance of a previous agreement, is in violation of the statute. But, as we have already observed, at the date of the transfer made there was no agreement under which the parties could enforce further transfer of accounts. The one made was, therefore, voluntary, and, in so far as it was made for the benefit of directors and stockholders of the corporation, it was in violation of the statute.

Three of the directors, Alexander, Patton, and Chapin, prior to the maturity of the notes, and on February 16,1893, ceased to be either directors or stockholders in such corporation. The provision of the statute last above referred to does not, therefore, apply to them. The statute distinguishes between a transfer to an officer or stockholder, and one to a person holding neither of such positions. To a stockholder or director, a transfer of corporate property is forbidden, if the corporation shall have refused to pay any of its notes or obligations when due; but to other creditors a transfer of corporate property in payment of its debts is only prohibited “ when the corporation is -insolvent or its insolvency is imminent, with the intent of giving á preference to any particular creditor,' over other creditors of the corporation.”

In the latter case the plaintiff does not sustain the burden of proof resting upon him by merely showing a transfer of property to a creditor in payment of a just debt, after it has failed to meet at maturity one or more of its obligations. It is necessary for him to go further and show facts from which the inference is required that the officers of the corporation making the transfer of the property did so with the intent of giving the creditor a preference at a time when the corporation was insolvent, or its insolvency imminent It is obvious from the agreement, and the conduct of the parties under it, that the transfer of accounts was the natural result of a legitimate effort to secure payment of a debt contracted under an agreement that it should be secured, but which failed of its purpose, owing to the neglect of the parties to strictly conform to its provisions. Under these circumstances, it is not unlikely that the officers of the corporation regarded themselves as bound in equity, if not in law, to make such a transfer of accounts as would comply with the conditions on which the money was originally loaned. If such were the case, the inference would not necessarily be required that the intent with which the act was done was that of giving preference to particular creditors over other creditors, within the meaning of the statute. If the views expressed are correct, it follows that upon the facts, as here presented, the plaintiff is entitled to a judgment directing a reassignment to him of such accounts, or the proceeds thereof, as shall remain after a sufficient sum shall have been collected to pay the sums due, with principal and interest on the notes belonging to Alexander, Chapin and Patton. In determining the amount due on the Chapin note, there should be first credited thereon $1,176.69, the value of certain goods for which he is indebted to the corporation.

Judgment is directed accordingly, without costs.

All concur.


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    Hymen Morange, Resp’t, v. New York Elevated Railway Company, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Evidence—Elevated bailway.
    In an action by an abutting owner against an elevated railway for damages, evidence of a rise in the value of property after the construction of the road, hot attributable exclusively to the beneficial effects of the road, is inadmissible.
    Appeal from a judgment in favor of plaintiff.

      Davies, Short & Townsend (Julien T. Davies and Ezra A. Tuttle, of counsel), for app’lts; Thomas J. McKee (William B. Page, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to recover past and fee damages caused by the construction and operation of the elevated railroad in the Bowery, upon which the property of the plaintiff abuts. We see no reason for disturbing the conclusion at which the learned judge below arrived upon the consideration of the evidence adduced before him upon the trial. The fallacy of the argument presented by the learned counsel for the appellant arises from the fact that he seems to assume that the rise in real estate between the time of the commencement of the construction of the defendants’ railroad and the present is attributable exclusively to the benefits conferred upon such ■ property by the construction and operation of such railroad, entirely ignoring the fact that from 1873 to and unto the year 1877 there was a depression in real estate, the result of the panic in 1873, such as this city has seldom seen ; a recovery from which, whether the elevated railroads were built or not, was as certain as that this country would again become properous. It is not considered necessary to discuss the evidence in detail. It seems to justify the conclusion at which the learned court below arrived. Exceptions were taken to the refusal of the court to find certain proposed findings of fact, and the complaint is made that, as the court did find certain other facts proposed by the defendant, it was error to refuse those findings to which our attention has been called. But it will be seen that the findings which have been requested present elements which are not supported by the testimony, and seem to be in contradiction thereof. The learned court found the physical facts, and refused to find assumptions thereon. Our attention is called to a large number of cases in respect to this question of damages in cases of this description, but we do not think that any of them in any degree conflicts with the course pursued by the court in the trial of the action at bar. We are of opinion, therefore, that the judgment should be affirmed, with costs.

All concur.


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    David R. Morison, Resp’t, v. New York Elevated Railway Company et al., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Deed—Desceiption.
    A deed whose description begins at the corner of an adjoining lot, fifty feet from the intersection of the adjacent lines of two streets, and runs along one of said streets, does not convey title to the center of the street.
    Appeal from a judgment in favor of plaintiff.

      Davies <6 Rapadlo, (Judien T. Davies and Brainard Tolies, of counsel) for app’lt • Andrews <& Purdy, (L. II. Andrews, of counsel) for resp’t.
   Van Brunt, P. J.

This action was brought to recover past and fee damages against the defendants for the erection and operation of their elevated railroad in front of premises Mo. 818 Greenwich street. The learned referee found that the plaintiff was the owner of the fee of the street in front of the premises described in. the complaint to the center thereof, and that the public had no rights in said street except to use it as an ordinary public street; and he refused to find at the request of the defendant that the plaintiff did not own the roadbed of any part of Greenwich street, and that the only property of plaintiff in said street fronting said premises consisted of easements of light, air and access. It is apparent from an examination of the descriptions by which the plaintiff derives title that the deeds conveyed no part of the street to the grantee therein named. The description of the property is as follows:

“ All that certain dwelling house and lot of land situate, lying, and being in the Fifth ward of the city of Mew York, on the west side of Greenwich street, known and designated as Mo. 304 in said street, being one of two lots which were sold at auction by the rector and inhabitants of the city of Mew York in communion of the Protestant Episcopal Church in the state of Mew York, and conveyed by them to James Walker, of the city of Mew York, by deed dated June 1st, 1795, and in a map or chart of the same lots distinguished by the Mos. 38 and 39; lot Mo. 38, one of the said lots, and hereby conveyed, or intended to be, being bounded as follows, viz.: Beginning at the northeast corner of lot Mo. 37, being a point distant fifty feet from the corner- formed by the intersection of the southerly side of Duane street with the westerly side of Greenwich street, running thence northerly along Greenwich street, aforesaid, twenty-five feet; thence westerly along lot No. 39, sixty feet; thence southerly along lot Mo. 32, twenty-five feet; thence easterly along lot No. 37, sixty feet, to Greenwich street, the place of beginning,—be the said dimensions more or less.”

Under the rules laid down in the case of Kings Co. Fire Insurance Co. v. Stevens, 87 N. Y., 287, the grantee under such a description does not take to the center of the street; and we are not aware that this case has been overruled by any subsequent adjudication. It is claimed that some modification has been made in that rule by the case of Holloway v. Delano, 34 N. E., 1052 ; 54 St. Bep., 686, 687; (recently decided by the court of appeals), but we fail to find that the court has overruled the principles laid down in the case first cited.

It is urged upon the part of the respondent that if the deeds in the claim of title under which plaintiff takes did not convey the fee of the street, the result will be just the same, because there is no evidence that the fee was ever conveyed to the city of New York; and that, if it remained in any grantor, then the plaintiff acquired the fee of the land occupied by the vaults by adverse possession. It is perfectly clear that the referee did not proceed upon any such theory, and the vaults did not extend to the center of the street; and it is a little difficult to see how a party can obtain title to any portion of a highway used by the public by adverse possession. The referee erred, in his finding that the plaintiff owned to the center of the street, and the judgment should be reversed, and a new trial ordered before another referee to be appointed by this court, with costs to appellant to abide event.

All concur.


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    David R. Morison, App’lt v. New York Elevated Railway Company et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 15, 1893.)

    Appeai.—Aggrieved .
    A party, who recovers a judgment in accordance with the demand of his complaint, is not aggrieved thereby.
    Appeal from a in his own favor.

      Andrews & Purdy (L. H. Andrews, of counsel), for app’lt; Davies & Rapadlo (J. T. Davies, of counsel), for resp’ts.
   Van Brunt, P. J.

The plaintiff in this action appeals from each and every part of the judgment herein. In the case previously argued the court has sustained his appeal so far as to reverse the judgment and direct a new trial. But the plaintiff claims that the ground of his appeal is that the referee refused to find that the Manhattan Bail way Company was illegally incorporated. It is true that the plaintiff in his complaint had allegations tending to this result; but by his prayer he asks for an injunction against the maintenance of the structure of defendant’s road, and that, if the court should determine that the defendants are, or either of them is, a valid existing corporation, then that the plaintiff have judgment against such corporations and corporation so existing, etc. Pursuant to this prayer for relief the referee adjudged the defendants existing corporations, and gave judgment for the damages sustained by the erection and maintenance of the roads. This judgment being as asked for by the plaintiff, it is difficult to see how he is aggrieved thereby, and we are of opinion that he is not aggrieved thereby, and that his appeal should be dismissed, with $10 costs and disbursements.

All concur.