author: Smith, J.

text:
    JONATHAN L. BOOTH and others, Plaintiffs, v. THE CLEVELAND ROLLING MILL COMPANY and others, Defendants.

      Becla/rations of agent— When the act of the agent can be proved, it is competent to prove what he said about the act while doing it — Bes gestae— Objection to evidence — • must be taken as soon as its objectionable chm'acter is appa/i'ent.

    Motion by defendants for a new trial on exceptions taken at tbe Circuit, and ordered to be heard at tbe General Term in tbe first instance, after a verdict in favor of tbe plaintiffs.
    Tbe action was brought to recover for an alleged breach of contract. The plaintiffs were tbe owners of a patent for an invention known as tbe Booth rail, being a rail for use on railroads, composed of an iron base and a steel cap, made separately, and afterwards put together by clamping, without tbe use of bolts, screws or rivets. In 1867 and 1868, tbe rails were manufactured in small quantities by tbe plaintiffs, and put in use on several roads. On tbe 1st day of June, 1869, tbe defendants, who are manufacturers of rails, entered into a contract, in writing, with tbe plaintiffs, by which tbe plaintiffs gave to tbe defendants tbe right to manufacture tbe rail in question in tbe States of Ohio, Indiana and Illinois, such right being exclusive (except that tbe plaintiffs reserved tbe right to license companies having roads in said States to manufacture for then own roads), so long as tbe defendants should supply tbe demand for tbe rail in those States. All rails were to be of good materials and workmanship. Tbe license was given on certain conditions, one of which was, that tbe defendants were to pay a royalty of two dollars and fifty cents on each ton for tbe first 7,000 tons manufactured, payable on the fifteenth of each month for the month preceding. The defendants were “to proceed at once to make said rail in Cleveland, and within a reasonable time in Chicago, and to use all proper effort and due diligence to introduce and sell the same; no other rail made by them to receive more attention or interest than the Booth rail, so long as said rail holds good as a practical and reliable rail for use,” One of the breaches alleged in the complaint, and the only one for which the plaintiffs recovered, was, that the defendants refused to fill an order of The Lake Shore and Michigan Southern Railroad Company for 4,100 tons of the plaintiffs’ rails, on which the plaintiffs would have been entitled to receive from the defendants a royalty of $10,250. For that sum, with interest, the plaintiffs recovered a verdict.
    The case has been twice tried. The first trial resulted in a nonsuit, which was reversed at General Term (13 N. T. S. O. R., 591), where it was held that the contract between the parties was not a mere license to the defendants to make and sell the Booth rail, but that, by its provisions, the defendants impliedly promised to perform the conditions therein expressed, according to the terms of the contract, in the performance of which the plaintiff had an interest. That construction of the contract was followed at the last trial.
    Several exceptions as to the admission of evidence were taken by the defendants, as to one of which the court at General Term, said: “ It is contended that the court erred in permitting the plaintiff to give in evidence declarations of Chisholm, the vice-president of the defendants, in regard to the rails and steel. The plaintiff Booth, called by the plaintiffs, testified that he was present during the making of some of his rails by The Cleveland Rolling Mill Company, and that, in January, 1871, at the rolling mill where they rolled the solid steel rail and made the cap, he had a conversation with Mr. Chisholm as to the making of the Booth steel and rail, of which work Chisholm had charge. That Chisholm said, ‘ from his experience, he had become satisfied of the success of the invention, and that he never had any apprehension in reference to it, except the possibility of the cap becoming loose under wear, and now he had become satisfied in reference to that, and although ’ — At this point the defendants’ counsel objected to the evidence as incompetent. The objection was overruled, tbe defendants excepted, and tbe witness continued: ‘ He said that be was satisfied as to the rail now, perfectly; and that be was satisfied, also, that tbe difficulty was in tbe steel they bad applied to it, and that there was no doubt of that, and they were going to give their steel works more definite attention after this, and be bad no doubt be could make tbe rail a success.’ I am of tbe opinion that tbe whole of this testimony was inadmissible, and if it bad been objected to in season, it should have been excluded. Tbe rule admitting tbe declarations of an agent to affect bis principal has this extent only, that whenever what tbe agent did is admissible, then it is competent to prove what be said about tbe act while be was doing it. It is because it is a verbal act, and part of tbe res gestee, that it is admissible at all. (G. Ev., § 113.) Here, although Chisholm was tbe agent of tbe defendant, and bad charge of tbe work of making tbe Booth rails, and was then engaged (it may be assumed) in superintending tbe manufacture of some of those rails, yet tbe declarations bad no connection with tbe particular work which was then going on, or with any act in which Chisholm was then engaged. But tbe objection should have been taken in Urni/ne, or, at least, as soon as tbe objectionable character of tbe testimony was apparent. It was not then taken. Tbe witness was permitted, without objection, to detail tbe revelations of Chisholm concerning bis experience, bis apprehensions and bis opinions respecting tbe plaintiffs’ rail, until it became manifest that tbe communications made by their vice-president on that occasion were not favorable to tbe defendants, and then an objection was interposed in tbe midst of a sentence. It is not impossible that tbe delay arose from a laudable wish not to occupy tbe time of tbe court with an objection to what might turn out to be wholly unimportant and harmless, though inadmissible testimony; but if tbe practice were tolerated, it might be used for unworthy purposes, and would lead to mischievous consequences. Under tbe circumstances, tbe defendants should be held to have waived all objection to the testimony, it being responsive to tbe question {Quin v. Lloyd, 41 N. Y., 349); at least, it was in tbe discretion of tbe judge to sustain or overrule tbe objection, and bis decision ought not to be reversed, unless it was a plain abuse of discretion, which it was not.”

      W. F. Cogswell, for the plaintiffs. George F. Demforth, for tbe defendants.
   Opinion by

Smith, J.

Present — Mullin, P. J., Talcott and Smith, JJ.

New trial denied, and judgment ordered for tbe plaintiffs on tbe verdict.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    ETHELBERT BELKNAP, Appellant, v. THE NORTH AMERICA LIFE INSURANCE COMPANY and others, Respondents.

      Action toremove trustee of a corporation — 2 S.S., 468, § 85 — “creditor in” — meant> judgment m'editor — chap. 463 of 1853.
    The word creditor, as used in section 35 of 2 Revised Statutes, 463, authorizing “ any creditor ” to maintain an action to procure the removal or suspension of a trustee of a corporation for an abuse of trust, means a judgment creditor. The owner of a paid-up policy issued upon his life by a life insurance company is not a creditor thereof within the meaning of that section.
    Said section was not repealed by section 17 of chapter 463 of 1853 providing for an examination of such companies by the comptroller, and the maintenance of an action against them by the attorney-general.
    Appeal from an order made at the Special Term, denying a motion for the appointment of a receiver and for an injunction.

      Réclfielcl <£¡ Sill, for the appellant.
    The policyholders are creditors within the meaning of section 35, article 2, title 4, chapter 8, part 3 of the Revised Statutes, and, as such, have a standing to invoke the power of a court of equity to restrain waste and misappropriation of the company’s funds by the officers and others. (1 Bouvier Law Diet., 409, tit. “ Creditor.”) The term “ creditor ” is used in our statutes in its broad and popular sense. Statutes must be interpreted according to the popular meaning of the language, unless some controlling reason appears for a special and restricted interpretation. (Ohase v. N. Y. O. R. R., 26 N. Y., 523, 525 ; Holmes v. Ga/rley, 31 id., 289 ; Wallace v. Harris, 20 Wend., 555, 562; The People y. Draper, 15 N. Y., 532.) The general design of the Revised Statutes was to secure equality in the distribution of the assets of insolvent corporations. (§ 9, art. 1, tit. 2, chap. 18, part 1, R. S., 592; § 11, art. 3, tit. 4, chap. 8, part 3, R. S., 2; id., 469; Brower v. Harbeck, 9 N. Y., 591, 593 ; Cvrtts v. Zeamtt, 15 id., 109,139,198,199; Gasserly v. Marmers, 9 Hun, 102.) Its provisions are intended to subject all proceedings which might lead to preferences to the control of the court in the equity suit, and to compel all claimants to “ exhibit .their claims and become parties ” to the equity suit (Rim v. Astor Fire Ins. Go., 59 N. Y., 143 ; Mickles v. Rochester City Bank, 11 Paige, 118, 125), so that each claim 'might be established as against every other, and no one secure any advantage over any other in point of time. A policyholder is a preferred creditor. (Re Groton Ins. Go., 3 Barb. Oh., 642; Ze Roy v. Globe Ins. Go., 2 Ed. Oh., 613, 614.) It would seem to be decided that any one interested in the distribution may file the bill to wind up a corporation, to obtain a distribution of its assets and the incidental relief afforded by section 56. (Mickles v. Rochester City Bank, 11 Paige, 125.) .The plaintiff has a standing to maintain this action wholly independent of any statute. This bill charges a plain misappropriation of trust funds, in which the plaintiff has an interest, by these officers and the Universal Company. (Grey v. The H. Y. and Virginia Ins. Go., 5 S. C. R. [T. & 0.], 228; Brewer v. Boston Theater, 104 Mass., 318; Mamrini v. Goldtlvwalte, 34 Texas, 135 ; Heath v. Frie R. R. Go., 8 Eleteher, 341; Dodge v. Wdlsey, 18 How. [U. S.], 321; Mott y. The Penn. R. Co., 30 Pa., 1; Manderson v. The Commercial Bank, 28 id., 319.) The action ought ordinarily to be brought in the name of the corporation; but when, as in this case, the officers are parties to the wrongs alleged, one may sue in behalf of himself and all others similarly situated. (Beaman v. Buff or d, 1 Sim. [U. S.], 550 ; Winch v. Birkenhead R. Go., 5 D. G. S., 562;
      Mosley v. Allston, 1 Pb.iL, 790 ; Wood v. Draper, 24 Barb., 187; Robinson v. Smith, 3 Paige, 222 ; Gvmmngham v. Dell, 5 id., 607; Peabody v. Flint, 6 Allen, 52 ; Carpenter v. N. F. and F. H. R. R. Go., 5 Abb., 257; Cross v. Sackept, 2 Bosw., 617; Prouty v. The South. R. R. Co., 4 N. Y. S. O. R., 231.) A creditor at large may maintain such an action. {limes v. Lansing, 7 Paige, 584; 1 R. S., 767; 1 N. Y. Stat. at Large, 720; Middles v. Rochester City Bank, 11 Paige, 118, 126 ; Gorvroy v. Cray, 4 How. Pr. R., 166; Gonro v. Port Henry Iron Go., 12 Barb., 27, 58 ; Story Eq. Plead., § 99; Gal/way v. Steam Sugar Refining Go., 36 Barb., 256.)

      Robert Sewell, for the North America Life Insurance Company, respondent.

      Ashbel Green, for the Universal Life Insurance Company, respondent.
   Barnard, P. J.:

The plaintiff is a policyholder in the North America Life Insurance Company, having a paid-up policy. He avers in his complaint, that the North America Life Insurance Company, through its officers, has made a corrupt and injurious arrangement with the Universal Life Insurance Company, whereby the management of both companies is conducted by the same directors and partially by the same officers. That these combined companies have made some other arrangement, whereby property of the Guardian Life Insurance Company, has come into their possession and they have so mingled the funds of the three companies, that it is impossible to trace the same. The complaint also avers other frauds and imperfections, and asks that a visitation of the three companies may be made under the direction of the court; that all persons who are directors both of the Universal and North America companies may be removed from their offices; that the injurious contracts and arrangements may be declared void; that the North America company may, if insolvent, be dissolved and its affairs wound up, and asks for a receiver in the meantime.

The motion for a receiver and for a referee to visit the three companies was denied on the ground that the plaintiff had no standing to bring tbe action. Is a policyholder in a life insurance company a creditor? Assuming him to be a creditor at large, does tbe word “ creditor ” in tbe statute mean a judgment creditor ? If tbe plaintiff bas a right to sue under tbe Revised Statutes (2 R. S., 462, §§ 33, 34 and 35) does tbe law of 1853 (chap. 463, Laws of 1853 § IV), take away bis right ? These are tbe questions involved on this appeal.

I do not think tbe plaintiff is a.creditor. He bolds a paid-up policy. After be dies tbe insurance company will owe bis representatives tbe amount thereof, if no fraud or misrepresentation bas been used to obtain tbe policy, if no warranty bas been broken and if tbe assured does not violate any of tbe conditions contained in tbe policy itself. There is no present right. There is no certainty that there ever will be an established debt. Tbe creditor must be a judgment creditor; so held in reference to tbe statute word “ creditor ” in other sections. • (Greenwoood v. Brodhead, 8 Barb., 593; Crippen v. Hudson, 13 N. Y., 161; Frisbee. Thayer, 25 Wend., 398.)

Any other meaning to tbe word creditor would involve a possible joinder of incongruous causes of action and triable in a different way. If tbe debt at large was claimed to be upon contract and tbe contract was denied and tbe debt should be averred to be paid, bow is tbe issue tried ? When tbe Revised Statutes were passed a legal and equitable claim could not be joined in one complaint.

If creditor meant a creditor at large with an unproven debt, why did tbe legislature give bim a standing in a court of equity, when bis vei’y debt must be proven in a court at law.

As to tbe third,question I see no reason to bold that chapter 463, Laws of 1853, section IV, was intended to repeal tbe Revised Statutes. By that section tbe comptroller was given power, on suspicion of unsound condition, to cause an examination to be made into tbe affairs of tbe suspected company. If be found tbe company in an unsound condition he is directed to withdraw tbe certificate granted to tbe company, and no new policies are to be issued.

Tbe comptroller is also directed to communicate tbe fact of tbe unsoundness of tbe company to tbe attorney-general, whose duty it is then made to apply to tbe Supreme Court for an order requiring tbe company to show cause why it should not have its business closed.

By section 11 of this act of 1853, the life insurance corporations are made subject to the Revised Statutes, “ except in regard to annual' statements and other matters herein otherwise specially provided for.” The argument is made that, by section 17, a dissolution is provided for, and consequently that, by section 11, the Revised Statutes are not applicable. The Revised Statutes (2 R. S., 462, § 33) are addressed to an entirely different class of cases than those expressed in section 17, of Laws of 1853. The power to dissolve a corporation authorized by law to make .insurances was given to the Court of Chancery for insolvency or inability to pay its debts ; for violation of charter or of any act binding upon it. (2 R. S., 463, § 39.) Section 17 of the Laws of 1853 does not necessarily reach either of these cases.

I cannot, therefore, hold that the Revised Statutes are repealed because the .present case is specifically provided for in the law of 1853. "

Order affirmed, with costs and disbursements.

Present — BarnArd, P. J., and Gilbert, J.; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    HENRY E. TREMAIN v. THE GUARDIAN MUTUAL LIFE INSURANCE COMPANY and others.

      Action brought by one oreditoi', in behalf of himself cmd all other oreditors — discontinuance of.

    Where one creditor commences an action against a corporation “ in behalf of himself and all others interested either as creditor or stockholder,” he may discontinue the same at any time before the entry of judgment without the consent of the other creditors.
    Appeal from an order denying a motion to vacate an order discontinuing this action.

      Redfield, Óa Hill, for Wheelock and others, appellants.
    The plaintiff’s dominion on this kind of proceeding is not absolute. It is qualified by tbe right of others to come in and participate, and when they do come in the plaintiff cannot abandon the action except for himself. (Brownson v. Lacrosse R. R., 2 Wall., 283, 302; Reck v. If. Y. and L. Steam Oo., 3 Bos., 622; Thayer v. Tool Oo., 4 Gray, 75; Adair v. JVewRimer Oo., 11 Yes., 429; Story Eq. Pleading, § 116; id., § 99; 2 Daniels, chap. 1213; 2 Smith’s Oh. Prac., 111.) Such parties are not compelled to submit the conduct of their entire defense to the original party. They may, by petition, be made parties and let into the cause, if their rights are interwoven with others, so that they will be simultaneously disposed of. (Smith v. Button, 2 P. & TI. ¡Ya.], 124; 1 Daniel’s Oh. Prac., 406; Story Eq. Pldg., 116; Wood v. Bummer, 3 Mason, 315; Govman v. Russell, 14 Oal, 531; Mitford Eq. Pleadings, 178; Wañte v. Simple, 1 S. & S., 219; Birmy’s Case, 2 Bland., 99 ; Warfield v. Banks, 11 G. & J., 97; 1 Daniel’s Oh. Prac., 429; Blossom v. R. R. Oo., 1 Wall., 655; Withenburg v. U. S., 5 id., 820; Ora/wshay v. Southern, 6 id., 739 ; Oook v. Young-hall R. R., 4 Ct. App., 753; Galmeston R. R. v. Oowdsay, 11 Wall., 459; 1 Barb. Oh. Prac. [2d ed.], 226, 227 [bottom paging, 444, 445], and cases cited; ILolkirk v. Rolkirk 4 Mad. Oh., 57.) The complaint was a joint one, and Tremain had no right to abandon the suit except for himself. (Kellogg v. Forsyth, 24 How., 215, 186; Johnson v. Hamersly, 24 Beav., 498; Armstrong v. Stover, 9 id., 277; Todd v. Bardel, 16 Pet., 523.) They, therefore, had a right to prosecute the suit for their benefit. (2 Daniel Oh. Prac., 1460; Ellison v. Thomas, 1 DeG., J. & S., 18; Kidd v. Oheyne, 18 Jim, 348; Barker v. Barker, 39 N., 408, Kellogg v. Forsyth, 24 How. [U. S.], 215, 186; Gifford v. Hart, 18 Oh. & Let., 409; Osborn v. Ulster, 2 Bro. P. O., 304.)

      Robert Sewell, for the respondents.
    A plaintiff commencing an action of this description, as he acts upon his own motion and at his own expense, retains, as in all other cases, the absolute dominion of the suit until decree. He may dismiss the bill at .his pleasure. (Daniel’s Oh. Prac., vol. 1, p. 234; Edminston v. Leide, 8 Paige, 637; Handford v. Slone, 2 S. & S., 196; York v. White, 10 Jim, 168 ; Armstrong v. Storer, 9 Beav., 277; Johnson v. Hammersly, id., 498; Whittington v. Edwards, 7 W. R., 72; Inchley y. Alsop, 7 Jur. [N. S.], 1181; Hubbell v. Warren <& Allen, 173; Updike
      v. Doyle, 7 R. J.,. 446; Gollms v. Tcuylor, 3 Greene Oh., 163; Daniel’s Oh., 244-794; Matteson v. Demcvrest, 1 Robt., 717; Irmes v. Icmsmg, 7 Paige, 583.)
   Barnard, P. J.:

The plaintiff brought this action “ on behalf of himself and all others interested in the Guardian Mutual Life Insurance Company, either as creditor or stockholder.” The plaintiff settled his own claim with the defendant and agreed to discontinue the action. Upon apiffying to his attorneys for a consent to discontinue, they declined, saying that they had other clients similarly situated with plaintiff, but they gave a consent to substitute another attorney. The old attorneys entered an order joining three persons as co-plaintiffs, without notice to any one, and after giving consent to substitute, and the defendants, on the consent of the substituted attorney, entered the order of discontinuance. Upon this consent to discontinue, by the new attorney, there was indorsed a consent, by the old attorneys, to waive notice of motion for the order thereon. The new plaintiffs moved to vacate the order of discontinuance, and the motion was denied.

The plaintiff had the right to settle and discontinue his action at any time before the rights of others were affected by his acts. This seems to be well settled in this State. In Edmiston v. Lyde (1 Paige, 636) the chancellor says that the parties standing in the same situation with the plaintiff may come in under the decree and contribute to the expense of the suit. In Innes v. Lansing (7 Paige, 538) it was held that a creditor who files a bill in behalf of himself and all others, may discontinue his suit at any time before decree, for “ the benefit of himself and the other creditors,” without the consent of the other creditors. In Matteson v. Demarest (1 Robt. Supr. Ct. R., 717) it was held that this rule had not been affected by section 119 of the Code.

Order should be affirmed with costs and disbursements.

Gilbert, J., concurred; Dtkman, J., not sitting.

Order .affirmed, with costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES KILLEEN v. EDWARD P. BAIRD, City Judge of Yonkers.

      Right of trial by jury — city judge of Yonkeo's —power to hem' oases — chap. 85 of 1873.
    A person accused of selling intoxicating liquors, in violation of law, is entitled to a trial by a jury.
    Tbe charter of the city of Yonkers (chapter 35, of 1873) provides that the city judge thereof shall have power to “ hold Courts of Special Sessions, with all the powers and jurisdiction of such courts as regulated by statutes,” etc. It also authorizes the mayor and certain other officers to arrest all persons selling liquor contrary to law, and provides that they shall be deemed disorderly persons, and that when brought before the city judge he “ shall proceed forthwith to hear, try and determine the complaint or charge.” Held, that a person brought before a judge on a charge of selling intoxicating liquors, in violation of law, was entitled to a trial hy jury if he demanded it.
    Writ of certiorcvri to review tbe conviction and sentence of tbe relator by tbe city judge of Yonkers, for selling intoxicating liquors on Sunday, in violation of law.

      Matt. H. ElUs, for tbe relator.

      R. E. Prime, for tbe respondent.
   Barnard, P. J.:

Tbe city judge of Yonkers bas power “to bold Courts of Special Sessions, witb all tbe powers and jurisdiction of sucb courts as regulated by statute, to try, convict and sentence all persons wbo may be guilty of any offenses wbicb are or may be triable by Courts of Special Sessions, and to bear and determine charges for every misdemeanor committed witbin said city.” (Title J, § 1, ebap. 35, Laws of 1873.)

“Tbe mayor of said city, tbe aldermen and each of them, or any of tbe police, shall have power and are hereby authorized, at any and all times, to arrest or cause to be arrested, witb or without process, all persons wbo shall sell strong or spirituous liquors and wines witbin tbe limits of said city contrary to law; all habitual drunkards, all persons found intoxicated in the streets of said city, and all persons engaged in quarreling or fighting, or immoderate riding or driving, or doing any thing calculated to endanger persons or property in any of the streets of said city, and all persons refusing to assist in the extinguishment of fires, in addition to those persons enumerated in the first section of title 5, chapter 20 of the first part of the Revised Statutes; all of whom shall be deemed disorderly persons.” (Title 12, § 11 of chap. 35, Laws of lS'TS.)

When any person charged or complained against as a disorderly person, under the provisions of this act, shall be arrested and be brought before the city judge of said city, the said city judge shall proceed forthwith to hear, try and determine the complaint or charge on which said person is so arrested, or he may, in his discretion, adjourn the hearing or trial, on cause shown, not to exceed five days, and in the meantime shall commit the accused to the county jail or any other convenient or secure place until such day, or suffer him to go at large on his executing a bond with sureties, under the approval of the said city judge, conditioned that he will appear on such adjourned day; and upon the conviction of any such offender either by confession or competent testimony, the said city judge shall have full power and is hereby authorized to punish by fine, not exceeding fifty dollars, or by imprisonment in the county jail of Westchester county not to exceed six months, or by both fine and imprisonment.” (Title 1, § 2 of said act.)

The relator was arrested by warrant issued upon a written complaint, for selling intoxicating liquors and wine as a beverage, on Sunday, in violation of law. Upon the complaint being read to him he pleaded not guilty, and offered to give bail sufficient for his appearance at the next court of competent criminal jurisdiction. The court refused to accept bail. The relator then demanded a trial by jury and the court refused to grant it. The court then tried the relator, convicted him and sentenced him to pay a fine of thirty dollars or be imprisoned in the county jail for thirty days.

The question presented is, whether these rulings were correct. Selling intoxicating liquors in violation of law was an offense triable by jury when the Constitution was adopted. “ The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” (Constitution of 18R3, art. 1, § 2.) “ The term 1 cases ’ is used in a generic sense; it embraces grades or classes, not individual or particular cases, except as they make up a class.” “ Tbe intent of tbe Constitution was to preserve tbe right as amply as it was enjoyed at the time of its adoption.” (Wynehamer v. The People, 13 N. Y., 878.)

A statute making intoxication in a public place a criminal offensej the accused cannot be deprived of the right of trial by jury. {Hill v. The People, 20 N. Y., 363.) The name given to the accused, disorderly person,” does not deprive him of a right to trial by jury. By the Revised Statutes certain classes of persons were termed disorderly persons, and summary power was given to correct and require surety for their good behavior for a year. There was no punishment for the past. Yiolation of the excise law was not among those classes named. The legislature could not, by classing among disorderly persons those who were entitled to a jury trial, take the right away. Moreover, I do not think that the legislature intended to take away the right by the sections above cited. The city judge is required to “ hear, try and determine,” the complaint, and upon the conviction, to impose the sentence authorized by law; to “ hear, try and determine,” according to the established rules of the law in criminal cases; why infer a different mode of trial in the city of Yonkers, from that prescribed for other portions of the State; why infer it from a general direction to the officer, to forthwith hear the complaint, especially, as in the same statute the city judge is made a Court of Special Sessions, “ as regulated by statute.” It rather seems to me, that the legislature, because it gave a power to many city officials to arrest certain offenders without warrant, that the direction to proceed and hear the case forthwith, was intended to protect the accused and not to take away his legal rights. I think, therefore, that the conviction should be reversed.

Gilbert and Dykman, JJ., concurred.

Conviction reversed.


author: Barnard, P. J.: Gilbebt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM KEHLBECK v. ANDREW WALSH, Police Justice.

      Abandonment of wives by husbands im, Kings county — diopter 895 of 1871 — what required to be proved under.

    Under chapter 395 of 1871, in relation to persons who abandon their wives and families in Kings county, it is not enough to authorize a conviction, to show that a husband has abandoned his wife, unless it also be shown that she has no adequate means of support, and is a burden upon the public.
    Certioeari to review the conviction of the relator on a charge of abandoning his wife, under chapter 395 of 1871.

      8. L). Lewis, for the relator.

      Wm. Sullmcm, for the respondent. ■
   Barnard, P. J.:

The relator was arrested for abandonment of his wife, under chapter 395 of the Laws of 1871. (Laws of 1871,volume 1, page 781.) By section 1 of this act the wife may be a witness, but no conviction shall be had upon her testimony, uncorroborated by other testimony.” She alone testified to the abandonment. The husband, the relator, testified that she told him she would leave him and support herself and me.” Before leaving it is proven that she had hold of her husband and was trying to push him down; she pulled his spectacles off and broke them;” she broke up about $100 of furniture; she took what remained with her; she applied for alimony in a divorce suit, which was denied. She is thirty-nine years old, her husband is sixty-five. He proves that he has now no home and no money, is ruptured, had the piles and the rheumatism and is incapable of regular work. Earns about $200 a year and sleeps in his son’s store; she is strong and healthy and gets drunk, as was proven on the examination. One witness had “ seen her fifty times under the influence of liquor.” She threatened her husband’s life and fired a full plate of potatoes at Ms son. I cannot in all tMs, find any corroboration of tbe wife’s statement tbat be bad abandoned ber.

I thmk tbe conviction should be reversed.

Gilbebt and Dxkman, JL, concurred-

Gilbebt, J.:

Tbis certiorari brings up tbe question whether tbe evidence was sufficient to warrant tbe conviction. (People v. Bd. of Assessors, 39 N. Y., 81, 88; People v. Met. Police Board, id., 506; People ex rel. S. amd U. H. R. Co. v. Betts et al., 55 id., 600, and cases cited.) Such, we understand, to be tbe rule on tbis subject, as modified by recent decisions.

Tbe relator was convicted under tbe “ act in relation to persons who abandon or tM*eaten to abandon their famibes in tbe county of Kings,” passed April 11, 1871 (chap. 395), of having abandoned bis wife and left ber without adequate support, a burden on tbe public, and of having neglected to support ber. Tbis statute must be deemed to have superseded tbe previous provisions of law on tbis subject so far as tbe latter applied to tbe county of Kings (Ross v. City of Brooklyn, Ct. of App., MS.), and tbe legal effect of tbat is to remove tbe defendant from tbe category of disorderly persons as defined by tbe Kevised Statutes (1 R. S., 638, § 1) and subsequent statutes (Laws 1844, chap. 174, § 6). Under tbe statute of 1871 it is tbe default after notice to find sureties who will join in his recognizance, only, which authorizes tbe justice to make up a record of conviction of tbe accused as a disorderly person. In tbis case sureties were found. Consequently no such record of conviction was, or could have been, made up.

It is apparent, also, from tbe language of tbe statute tbat a mere neglect to support a wife does not authorize tbe proceedmg under tbe act of 1871. “Neglect to support was an ingredient of tbe offense specified in tbe section of tbe Kevised Statutes and of tbe act of 1844, above cited. It was held in The People v. Pettit (3 Hun, 416) tbat tbe recognizance is not taken as an indemnity to tbe public, provided for by tbe section of tbe Kevised Statutes cited, but tbat tbe amount named in it is a penalty imposed for tbe neglect to support. Tbat effect cannot, however, be given to the recognizance under the act of 1871. For the words neglect to support ” were omitted in the latter act, and we think the omission was purposely made. Many wives abandon their husbands, and then invoke the summary and stringent power of a magistrate to compel their husbands to support them. Where such support is unnecessary for the public indemnity, we think, notwithstanding what was said in The People v. Pettit (supra), that a change of law throughout the State, like that made by the act of 1871, would be salutary. The common law affords no means of compelling a husband to support 'his wife otherwise than by making him liable to third persons who have supplied her with necessaries after he has improperly refused to do so, and the statute providing for the compulsory support of indigent relatives (1 E. S., 614, § 1) does not extend to husband and wife. Nor has a wife who has eloped from her husband authority to bind him for necessaries. (Pomeroy v. Wells, 8 Paige, 410; Cromwell v. Benjamin, 41 Barb., 558; see, also, Certwell v. Hoyt, 6 Hun, 579.)

Did the relator, then, abandon his wife ? We have found no evidence warranting that conclusion. On the contrary, it satisfactorily appears that after assaulting and maltreating the husband’s person, she left him and went to live with her son, and that she has sued the relator for a divorce. The only evidence of abandonment by the relator is that the wife went to the store where he was employed and asked for support, and he ordered her out of the store, and said he did not know her. That does not prove an abandonment on his part, but merely a refusal to support her away from his home, and a desire that her abandonment of him should continue. It was her duty to offer to return and live with him under circumstances showing her willingness to discharge her duties as a wife, and then a rejection of such offer by him might be deemed an abandonment.

But even if the husband’s conduct on the occasion mentioned amounted to an abandonment, that alone is not sufficient to confer upon the magistrate jurisdiction under the act of 1871. It must be atas abandonment which leaves the wife without adequate support, and a burden on the public. The statute of 1871 was not intended to furnish a civil remedy to deserted wives, but to protect the public against the expense of supporting paupers. If, when the abandonment takes place, the larder is full, or the wife is with relatives or friends who continue her support, or she has means of her own, or for any cause it is not proved that she has been left without adequate support and a burden on the public, both, the case is not within the statute of 18ÍT, and the magistrate has no jurisdiction to act.

¥e think the conviction should be quashed.

Barnard, P. J., and Dykman, J., concurred.

Conviction reversed.


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    HIRAM DECKER, Respondent, v. JACOB E. PARSONS, Appellant.

      Damages — verdict in excess of the amiount claimed in the complaint.

    Where a jury awards damages exceeding the amount demanded in the complaint, the plaintiff cannot amend the complaint unless he abandons the verdict, pays costs and consents to a new trial.
    The same rule applies to an action tried before a judge without a jury, by consent.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      J. P. Scmders, for the appellant.

      JET. 0. SoutJmorth, for the respondent.
   Barnard, P. J.:

This action was brought to recover damages to plaintiff’s canal boat. The plaintiff was employed to carry a load of lumber to defendant at Yonkers. Upon his arrival at that place he avers that the defendant told him to go up the Naperton creek to his, defendant’s, dock; that the place was safe and free from obstructions. That he, plaintiff, went in at high tide, and that when the tide went out the boat was cast upon a sunken wreck and badly broken.

The plaintiff asked, in his complaint, $500 damages. The evidence upon the trial was very conflicting. The plaintiff and his witnesses gave evidence tending to show that the direction to go up the creek, and that the same was safe, was given by defendant before the boat went np, and that it was injured, as alleged in the complaint. The defendant and his foreman and clerk gave evidence tending to show that the boat came to Yonkers in a sinking condition, and that the plaintiff asked to go in the creek to keep him from sinking outside, and that there were no sunken wrecks in the creek.

The question of the damage to the boat was not made the subject' of dispute, beyond a cross-examination of the plaintiff’s witnesses. There was proof upon the part of the plaintiff tending to show that the boat was worth from $1,600 to $2,000 before injury, and from $800 to $1,200 afterwards. That the plaintiff had paid $516 to fit her up again so far as he had done so.

The case was tried by the judge without a jury, by consent. There was no application to amend the complaint npon the trial. The judge, in his findings, establishes the injury at $800, and states therein that the plaintiff having applied to amend his complaint, by increasing the claim to damages, he orders the complaint amended accordingly, and gives judgment for $800, with interest thereon from the date of the injury to the vessel.

I think the amendment erroneous. The trial by the judge was a substitute for a trial by jury. The case was tried upon the claim as made by plaintiff; he could state damages to any amount he chose, and he is the best judge of them. When a jury gives greater damages than are claimed, the plaintiff cannot have judgment unless he remit all over the amount claimed. (Curtis v. Lawrence, 17 Johns., 111.)

When such a verdict is found, the plaintiff will not be permitted to amend by increasing the damages, unless he abandons his verdict, pays the costs, and consents to a new trial. (Dox v. Dey, 3 Wend., 356.) In this case, the court say “ such an amendment would be improper without giving the defendant an opportunity of reducing the damages, which on the trial he had no occasion to do, by reason of the moderate amount claimed.”

Before the adoption of the Code, it was well settled that the Supreme Court had no power to allow an amendment after verdict, by increasing the amount of damages claimed to correspond with the verdict, except upon the couditiou that the plaintiff relinquish the verdict, pay the defendant’s costs of trial, and consented to a new trial. The Code has not changed this rule. (Corning v. Corning, 2 Seld., 97.) Tor this reason, the judgment and order amending the complaint should be reversed and a new trial granted,” costs to abide event.

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

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


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES W. TODD, Appellant, v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Respondent.

      Village of Mew Boeheile — chap. 249 of 1864 — ■power of trustees — ■enforcement of ordinances.

    The trustees oí the village of New Rochelle were authorized to pass by-laws “to compel all persons or corporations landing passengers within the limits of said village, to construct such suitable and safe platforms and accommodations as are necessary for the safety of passengers.” Meld, that the trustees had no authority to pass a by-law directing the defendant to reconstruct a platform and stairway upon land not belonging to it, but which, it was alleged, could be purchased for a reasonable sum, and enforce the same by mandcmus.

    The only method of compelling obedience to ordinances adopted under such authority, is by passing ordinances affixing a penalty to their violation and enforcing the same by action.
    Appeal from an order denying a motion for a mcmdamms.

    This was an application by the president ' of the village of New Rochelle to enforce by mcmdcunvus a resolution of the board of trustees of New Rochelle, requiring the respondent to construct a passenger platform with stairway attachment bn the southerly side of its depot in said village, in addition to the one already existing on the north side thereof and upon land not belonging to the respondent.

      Bmiks c& Keogh, for the appellant.

      Oase <& Robertson, for the respondent.
   Barnard, P. J.:

By title 3, section 1 of chapter 249, Laws of 1864, the trustees of the village of New Rochelle, were empowered within said village “ to make, establish, publish, alter, modify, amend and repeal, rules, regulations, resolutions, ordinances and by-laws, for the following purposes.” * * *

Section 6, * * * and shall have the power to compel all persons or corporations landing passengers within the limits of said village, to construct such suitable and safe platforms and accommodations as are necessary for the safety of passengers. This clause was added to the original section 6, by amendment passed in 1867, chapter 176, Laws of 1867.

On the 24th day of July, 1875, the defendant was notified, that the trustees of the village had passed a resolution, directing the clerk of the village to request the railroad company to construct a passenger platform, with stairway attachment, on the southerly side of the depot ” in said village, and in default thereof in ninety days thereafter, that the president of the village was authorized to take legal measures to enforce the same. The company did not make the platform, and the president of the village applies for a writ of mandamus. I think the application was properly denied.

If the power given in the charter permits the trustees to determine the kind of platform needed, the power has not been exercised.

If the power given, is only to impose a penalty for neglect to provide suitable platform, that power has not been exercised.

The particular place where the trustees designate as the place for the construction of the passenger platform and stairway, is not owned by the defendants. The papers aver, that the defendants can acquire the title thereto, for a reasonable consideration; but can the power given to the trustees embrace the right to designate the place, and compel the company to buy the same for the purpose. I think the trustees have no such power. That they are to compel passenger platforms as “ they prevent nuisances,” “ and compel all persons to keep clean sidewalks,” by ordinances affixing penalties for neglect, and enforcing obedience by action for the penalty.

Order should be affirmed with costs.

Gilbert, J., concurred.

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

Order affirmed, with costs and disbursements.


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    CONSTANCE B. PRICE, Appellant v. WALTER W. PRICE, Respondent.

      Ma/rriage p>'ocwred by fraud — action to recover damages for— does not swmve.

    The defendant, by fraudulent representations that his first wife was dead, induced the plaintiff to marry him. Subsequently he abandoned her, and had the marriage annulled on the ground that his first wife was still living; and this action was brought by her to recover damages for his fraud and deceit. The defendant died before trial. Held, that the cause of action did not survive against his executor.
    Appeal from an order made at the Special Term, denying a motion to revive the action and to substitute the personal representatives of the deceased defendant in his place.

      Roger A. Pryor, for the appellant.
    The action did not abate by the death of the defendant. (Bondv. Smith, 4 Hun, 48,49; Smith v. Hew York, etc., 28 Barb., 608 ; Haight v. Haight, 19 N. Y., 468; Fried v. Hew York, eto., 25 How., 2, 86 ; Graves v. Spier, 58 Barb., 385 ; Hvnimrvy v. Fay, 38 id., 20 ; Bank v. Oollms, 5 Hun, 211; State v. Starkweather, 8 Jones & S., 462; Zabrislde v. Smith, 13 N. Y., 322; Arthur v. Griswald, 5 T. & C., 696; Moore v. Bermett, 65 Barb., 339 ; HemmuUer v. Gray, 44 How., 260.)

      S. Brown, for the respondent.
    The provisions of the Revised Statutes (2 R. S., 448, §§ 1, 2) only allow the continuance of those actions for wrongs which injuriously affect the estate of the party injured, and not for any of those which fall within the excepted cases enumerated in the second section. Hence such causes of action as erim. eon., seduction, breach of promise of marriage, and all injuries to the person, personal feelings or character, do not survive or continue, nor are such causes of action assignable. (Wade v. Kalbfleisoh, 58 N. Y., 282; People v. Tioga O. P., 19 Wend., 73; Butler v. H Y. and E. R. R., 22 Barb., 110; Meeeh v. Stoner, 19 N. Y., 29 ; Ohornberlai/n v. Williamson, 2 Maulé. & Selw., 408; Hodgman v. Western R. R. Go., 7 How. Pr., 492; Fried v. H. Y. G. R. R. Go., 25 id., 285; Pwrple v. Hudson R.

      JR. R. (Jo., 4 Duei’, 74; 29 G-a., 61; 5 Abb. [N. S.], 331; 2 Bosw., 277.) Tbe following cases were for deceit, and no specific property or property rights were affected by the fraud, and it was held the causes of' action did not survive, and were not assignable. (ZaJbrishie v. Smith, 3 Kern., 332-336; JBJyslop v. Bcmdall, 4 Duer, 660; Lamphvre v. Bail, 26 How. Pr., 509; Read v. Hatch, 19 Pick., 47.) “ It is a general rule that a right of action which upon the death of a party would pass to his executors, as a part of his assets, is assignable, and that the power to assign and transmit to personal representatives are convertible propositions.” This is the test. (3 Kern., 322; 22 Barb., 110; 25 How., Pr., 285 ; 14 Abb., 178.)
   Barnard, P. J.:

The defendant by fraudulent means induced plaintiff to marry him. He represented that he had the right to marry; that his former wife was dead. He thereby procured the plaintiff to consent to a marriage which was solemnized in due form. Three children were born of the marriage. Defendant then made false charges against the plaintiff and drove her from his house, and finally procured a decree annulling the marriage because his first wife was living while it was solemnized. The plaintiff commenced this action to recover damages for this fraud and before the case was tried the defendant died. The plaintiff seeks to continue the action against the defendant’s executors.

By 2 Revised Statutes 447 and 448, it is provided:

Section 1. “ For wrongs done to the property, rights or interests of another for which an action might be maintained against the wrong-doer such action may be brought by the person injured or after his death, by his executors or administrators against such wrongdoers and after his death against his executors or administrators in the saíne manner and with the like effect in all respects as actions founded upon contracts.”

Section 2. “ But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.”

I think this case not one which is permitted to be continued after the death of either party under those two sections. The Court of Appeals in Wade v. Kalbfleisch (58 N. Y., 285), have decided that the class of wrongs described in the first section which were authorized by it to be continued after the death of the wrong-doer must be such as to effect property or property rights and interests, or, in other words, such as effect the estate. If the plaintiff should have died before defendant, I know of no authority which would permit her executors to continúe this action against the defendant. If the plaintiff is right in her application, such a result would follow her death. The second section expressly excludes the plaintiff’s ease from those saved by section one. The technical name for the action under the practice which prevailed when the statute was enacted, was ease for personal injuries, and that is excluded by section 2.

Order should be affirmed with costs.

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

Order affirmed with costs and disbursements.


text:
    CHARLES BOSTWICK, as Assignee, etc., Appellant, v. GEORGE M. BURNETT, Respondent.

      General assignment — with preferences — void pm' se under bankrupt act.

    A general assignment, giving a preference to certain creditors, and made in con temptation of insolvency, is void per se under the bankrupt act.

      Thrasher v. Bentley (59 N. Y., 649) distinguished.
    Appeal from a judgment in favor of the defendant, entered upon a dismissal of the complaint.
    This action was brought by the plaintiff as assignee of one Woolven, for the conversion of two cows taken by the defendant under an execution issued against the property of the assignor. The defendant claimed that the assignment was void.

      Anthony c& Losey, for the appellant.

      G. <& G. H. Williams, for the respondent.
   Barnard, P. J.:

The assignment made by Jeremiab Woolven to the plaintiff, was one by which the assignor gave preference to certain of Ms creditors in the order of payment ont of the assigned property. It was a general assignment of all the property of the assignor, and was made in view of insolvency as declared therein. Such an assignment is declared to be void by the bankrupt act of the United States. The object of that act was to provide for a ratable, just and equitable distribution of the debtor’s estate among all his creditors. No preferences are permitted by it.

The Court of Appeals has decided that where the debtor has not been proceeded against or taken any proceedings in the bankrupt court, an assignment for the benefit of creditors by an insolvent debtor which gives no preference ” to any creditor, is not an instrument roid'per se. (Thrasher v. Bentley, 59 N. Y., 649.)

In a later case, the Court of Appeals say: “ The act was aimed at fraud, and to prevent preferences, and when neither of these are apparent, there is no ground for claiming that an equitable distribution of the insolvent’s estate is in violation of the law.” {Haas, Assignee, v. O’Brien, opimon by Miller, J.)

The instrument under which th& plaintiff claims title being void, by the provisions of the bankrupt act the plaintiff cannot sustain his claim to the title of the property in question, by or under it. The judgment should therefore be affirmed, with costs.

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

Judgment affirmed, with costs.


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    FRANCES E. PAYNE, Respondent, v. WILLIAM WILSON, Impleaded, etc., Appellant.

      Mechanic’s lien — agreement to give mortgage has jyriority over.

    One Halstead furnished building materials to defendant Palmer, wbo agreed to pay therefor, half in cash and half by a first mortgage on one of the buildings, in the erection of which they were to be used. May 1,1872, a mortgage was given to him for said sum, together with six per cent interest thereon, not acknowledged or attested by a subscribing witness. On June twenty-fourth he procured the mortgage to be acknowledged, and on August ninth it was recorded. On September twenty-first, fearing there might be some claim of usury, he obtained another mortgage from Palmer, omitting the six per cent. This mortgage was assigned to the plaintiff, who brought this action to foreclose it. Upon the trial it appeared that without any knowledge of Halstead one Wilson had, on June nineteenth, filed a mechanic’s lien against the mortgaged premises and others. Held, that the lien of the mortgage was entitled to priority over that acquired by Wilson.
    Appear from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee. Tbis action was brought to foreclose a mortgage given to tbe plaintiff’s assignor by tbe defendant Pabner.

      Jackson <Ja Burr, for tbe appebant.

      George H. Grawniss, for tbe respondent.
    By tbe contract between Palmer and Halstead tbe latter acquired an equitable mortgage and a specific ben on one of tbe said thirteen bouses, and as such has priority over subsequent judgments against tbe mortgagor or owner, and tbis, whether tbe agreement is to give a mortgage on an undivided interest or otherwise. Indeed, all equities against tbe property have preference over subsequent judgments. (Matter of Howe,l Paige, 125, 128, 129, 130, and cases therein cited; Dwight v. Newell, 3 N. Y., 185,187; Cook v. Craft, 3 Bans., 516; Bacouiller v. Scmsvcmi, 32 Cal., 375; Robinson v. Williams, 22 N.Y., 387; De Pierre v. Thorn, 4 Bos. Sup. Ct. B., 266; 2 Story’s Eq., 718, 719, § 1503, b, and authorities cited there.) In Matter of Howe (1 Paige Ob., 125) tbe equity appbed to an undivided interest in common. In Dwight v. Newell (3 N. Y., 185, 187) there was an agreement to give a mortgage on a part of a lot. Whatever ben, legal or equitable, existed before tbe filing of appebant’s ben has priority over tbe latter, and so any transfer of interest by tbe owner previous to tbe fihng of such mechanic’s ben has that priority, even where tbe deed was recorded after tbe fihng of tbe ben. (Cox v. Broderick, 4 E. E>. Smith, 721; Sinclair v. Fitch, 3 id., 677; Noyes v. Button, 29 Barb., 630; Qxmriby v. Bloom, 2 E. D. Smith, 594, 616; Gronk v. Whitaker, 1 id., 647; Lébretter v. Hoffman, id., 664; Ohamberlai/n v. O’Gownor, id., 665; Heurpler v. 0’ Gormor, id., 672; Mrs. Aubury v. Mild/wn, 1 Daly, 396 ; Bailey v. Johnson, 1 id., 61; Ems v. Reed, 49 Barb., 367.) Tbe equitable

      Hen under the agreement to gire a mortgage was not merged in the first or second mortgage, neither was the first mortgage merged in the second mortgage under the circumstances. (.Butler v. Miller, 1 Comst., 496, per Comstock, J.; Gregory v. Thomas, 20 Wend., 17; Phelps y. Johnson, 8 Johns., 58; James Y.Morey, 2 Cow., 285, 313, and cases there cited; Yam, West v. Batson, 19 Barb., 604; Bussell y. Austin,, 1 Paige; 192; Sohermerhorn v. Merrill, 1 Barb., .511; Spenser v. Blanford, 4 Wend., 381; Cooper v. Wlvii/ney, 3 HiH, 95; OUfton y. White, 15 Barb., 90 ; Bonnes v. Cam,ach, 1 id., 392; Hyde y. Tanmen, 1 id., 76; Heiglvway v. Pendleton, 15 Ohio, 735 ; Grimes y. Kimball, 3 AHen, 518; Sherwood v. Elslon, 5 Ind., 218; 4 Kent, 114-117; 6 Johns. Ch., 393; Forbes v. Moffat, 18 Yes., 384; £?r<?yon/ y. Thomas, 20 Wend., 17-20.)
   Barnard, P. J.:

In September, 1871, Palmer, the defendant, and one Doran, agreed with Charles Halsted, in consideration that said Halsted would furnish $8,000 in building materials, to pay half cash and half “ in a first mortgage on one of the thirteen houses now being erected by the said Doran.” The materials were furnished, the houses were built, and on or about the first of Hay, 1872, Palmer, who owned the fee of the land, defivered to Halsted a mortgage for $4,240, being for said half payment, with six per cent added to the cash value of said materials, “as caHed for by the agreement.” This mortgage was not acknowledged nor attested by a subscribing witness. On the 19th of June, 1872, William Wilson, one of the defendants, filed a notice estabfishing a Hen on aH the houses and lots, under chapter 478, Laws of 1862. On the 24th of June, 1872, Halsted procured Palmer and wife to acknowledge the mortgage, and recorded it on the 9th of August, 1872, in Kings county. On the 21st of September, 1872, Halsted, fearing that the six per cent added to the cash value of the goods might be held usurious, applied to Palmer to give a new mortgage, omitting the six per cent. This was done on that day. This' mortgage has been assigned to plaintiff and a foreclosure action brought thereon.

The question is as to the priority of Hen between the plaintiff and Wilson. Halsted has an equal right to payment in equity ; he sold goods which not only went into the premises in question, but also those which went into the remaining houses on which Wilson has an undoubted lien. By the agreement, he would have an absolute right to the mortgage if the particular house and lot had been designated. By the mortgage delivered before Wilson’s lien was filed, it was designated. If a mortgage is a “ grant in fee or of a. freehold estate,” under 1 Bevised Statutes, 738, it was good between the parties. (Wood v. Chapin,, 13 N. Y., 509.) The lien law only establishes such Hen to the extent of the right, title and interest of the owner at the date of fifing the notice of lien. Halsted, then, had a right, as against Palmer, to a mortgage on this property, enforceable in equity as a specific lien thereon. (Matter of Howe, 1 Paige, 125; Dwight v. Newell, 3 N. Y., 185.) Such a lien would take precedence over all subsequently acquired judgments.

I think Halsted lost no right by the change of the mortgages ; both were set up in the complaint, and no usury was either proven or claimed upon the trial. The giving of the second mortgage did not pay the first, and was not intended to pay it. There was no intention to change its priority. Halsted was ignorant of the intervening lien. Wilson has lost nothing by the cancellation of the first mortgage. Equity has power to give the substituted mortgage priority for the purpose of justice. (Bazmes v. Camaek, 1 Barb., 392.) I think the judgment ought to be affirmed, with costs.

Gilbert, J., concurred.

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

Judgment affirmed, with costs.


author: Gilbert, J.:

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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CYRUS LAWRENCE, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF WESTCHESTER, Appellant.

      County Vreasurm's— When agents of the State, not county — collection of State taxes by — compensation of — Mandamus—chapt&r 346 of 1855 — chapt&r 393 o/1863.
    Bounty treasurers, in receiving and paying over the State taxes, act as the agents of the State and not of the county.
    The school moneys form a part of the State taxes.
    By chapter 346 of 1855, the board of supervisors of Westchester county were authorized to establish the compensation of the county treasurer, at a sum not exceeding one per cent on moneys received and disbursed. By chapter 393 of 1863, county treasurers were authorized to retain from the Stale taxes collected and paid over by them the compensation to which they .might be entitled by law, not exceeding, in any case, $3,000.

      Held, that under the act of 1855, as modified by the act of 1863, the board of supervisors of Westchester county had no authority to allow to the county treasurer, for receiving and paying over the State taxes, any sum in excess of $3,000.
    When a board of supervisors has made an order directing the payment of a claim, not authorized by law, the court will issue a mamdcmvus compelling the board to vacate the same.
    No personal interest in the relator is essential, to enable him to maintain an application for that purpose.
    Appeal from an order of tbe Special Term, granting a mamda/mus compelling tbe board of supervisors of Westchester'county to reverse, annul and revoke its proceedings relating to tbe compensation of tbe treasurer of that county.
    The county treasurer made bis report of moneys received and disbursed, and charged against tbe county bis fees, in excess of $2,000, upon tbe amount of tbe State tax, viz., one per cent on $66,857.38, and one per cent on tbe school tax, $70,225.62. Tbe board allowed tbe treasurer tbe amount claimed, $1,370.02, claiming to be entitled so to do by chapter 346 of 1855. Tbe relator claimed that, by chapter 393 of 1863, tbe treasurer could not receive more than $2,000 for services in collecting tbe State tax, and that that amount bad already been paid to him by the State,

      Chas. H. Roosevelt, for the appellant.

      Robert S. Ha/rt, for.the respondent.
   Gilbert, J.:

The State collects taxes for State purposes, through the operation of general laws acting directly upon the tax-payers. In receiving and paying over such taxes, county treasurers act in behalf of the State, and not of the county. The law makes it their duty to pay such taxes to the treasurer of the State, and to enter into a bond to the State for the faithful performance of that duty. (1 R. S., 369, §20; Laws 1855, chap. 427, §§ 2,11, 12, 13; Laws 1866, chap. 696.) The compensation for their services mentioned is defrayed by the State. The provisions of the Revised Statutes making the compensation of county treasurers a county charge has been modified by subsequent legislation. By section 5 of chapter 393 of the Laws of 1863, it is made the duty of county treasurers to pay to the treasurer of the State on or before the first day of April in each year, the amount of the State tax received by them, retaining the compensation to which they may be entitled, which compensation shall not exceed the amounts then authorized by law, and shall not in any case exceed the sum of $2,000. Previous to this statute the board of supervisors of Westchester county had authority to fix the compensation of the treasurer of that county at a sum not exceeding one-half of one per cent for receiving, and one-half of one per cent for disbursing (Laws 1855, chap. 346), and in 1869 that board resolved, that said treasurer might receive the maximum compensation authorized by the statute of 1855. For collecting the State tax of 1875, amounting to $337,000 and over, the treasurer had been allowed not only the $2,000 authorized by the act of 1863, but in addition thereto one per cent on the excess of said State tax over $200,000. We are of opinion, that the allfowance of one per cent on such excess was unauthorized, and, therefore, illegal and void. The act of 1863, although it contains no negative words, repealed the act of 1855, so far as the latter act related to compensation for receiving and paying over the State tax, for the reason that the two acts in this respect are irreconcilably inconsistent. The one establishes a limit of compensation by an undefined, and the other by a specified sum. Moreover, the act of 1863 iu terms imposes a limitation upon the compensation to which the several county treasurers of the State were entitled, when the act was passed, and necessarily modifies all pre-existing statutes accordingly. The act contains no exception of the county of Westchester, and we can interpolate none into it. (See on this subject, Sedg. Const. Law, [2d ed.], 104 et. seq.; People v. Devlin, 33 N. Y., 273 ; Roosevelt v, Godard, 52 Barb., 534.) It does not repeal the act of 1855, or abrogate the authority of the board of supervisors to fix the compensation of the county treasurer, but merely imposes a different and more restricted limitation upon that authority, and, therefore, is not within the principle that a general statute, without negative words, will not repeal the particular provisions of a prior special statute. The school moneys formed a pail of the State tax.

As already intimated, while boards of supervisors act judicially in auditing accounts, yet -they act neither judicially nor ministerially when they audit claims against the county, not authorized by law. They are mere agents, and must confine themselves to the authority conferred upon them by law, or their acts will afford no protection to themselves or anybody else. (Supervisors v. Wandel, 6 Lans., 33 ; Supervisors v. Ellis, 59 N. Y., 620.)

We think cases of this kind form an exception to the general rule governing the writ of mcmdcmms to inferior tribunals, namely, that it can only put them in motion, and not require them to do a specified act. There are numerous precedents for the issuing of the writ in cases analogous to this, and we perceive no objection to the practice. (5 Wait’s Practice, 560.) No personal interest in the relator is essential. (People v. Halsey, 37 N. Y., 344.)

The order appealed from must be affirmed, with costs and disbursements.

Barnard, P. J.f> concurred; Dvkman, J., not sitting.

Order affirmed, with costs and disbursements.


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    RICHARD S. VAN WYCK, Respondent, v. LOUISA M. BAKER and EMILE BENEVILLE, Appellants.

      Action by judgment creditor, to set aside fraudulent conveyance — Costs—Code, §§ 304, 305 — Reversal of judgment by General Term — costs to abide the event — Special Term cannot grant discontinuance without costs.

    An action by a judgment creditor to set aside a conveyance of land made by tbe debtor on tbe ground that it was fraudulent, is an action in wbicb a claim of title to real property arises on tbe pleadings, witbin sections 304 and 305 of tbe . Code, and tbe successful party is entitled to costs therein as matter of right.
    Tbe plaintiff in such an action having recovered a judgment, the same was, upon appeal, reversed by tbe General Term and a new trial ordered, costs to abide tbe event. Subsequently, on plaintiff’s application, tbe Special Term directed 1 that tbe action be discontinued without costs to either party. Upon appeal, held, that, under tbe order of tbe General Term, in whatever manner tbe action might be determined, whether by judgment or discontinuance, tbe prevailing-party would be entitled to costs, and that tbe Special Term erred in discontinuing tbe action without costs.
    Appeal from two orders made at Special Term, diseontimimg this action without costs to either party.

      Frederick A. Wa/rd for the appellants.
    It is a general rule, both of equity and of common-law courts, to permit a discontinuance of actions, as a matter of course, but only on the payment of costs. The cases where courts of law and equity have relieved plaintiffs from the payment of costs on discontinuance have been: 1. Where the plaintiff would be finally exempt from costs, as in cases against executors. (Arrumo v. Steinbrermer, 1 Paige, 82.) 2. Where the prosecution would be rendered fruitless by matters beyond the plaintiff’s reach and occm-ring without his default, as where the defendant was imprisoned for crime or discharged as an insolvent (Lackey v. McDonald, 1 Cai., 116; Stembach v. Hallet, 1 Johns., 141), or had a personal privilege relieving him from liability, such as infancy (Van Burén v. Fort, 4 Wend., 209), or was beyond the jurisdiction of the court (Taaks v. Schmidt, 19 How. Pr., 318). 3. Where the defendant had appeared by fraud (Waterbury Leather Manuf. Go. v. F/rcms, 9 Abb. Pr., 115), or where he had willfully concealed the existence of a release (Be Bcuramte v. Beyermam, 41 N. Y., 355). But there is no other case in the books where an escape from payment of costs has been permitted. An action that had been commenced and litigated cannot be permitted to be discontinued by the plaintiff without costs upon a motion founded solely upon affidavit and without a trial of the cause. (Permell v. Wilson, 2 Abb. Pr. [N. S.], 466; see, also, Hcmmersley v. Btvrlce, 2 Paige, 373.)

      John Gibney, for the respondent.
   Gilbert, J.:

We think these orders are erroneous. The Code (§§ 304, 305) allows costs, of course, in cases where a claim of title to real property arises on the pleadings. The complaint contained appropriate averments showing that a conveyance of land from the defendant Baker to the defendant Beneville was made with intent to defraud the plaintiff, and other creditors of Baker, and was, therefore, fraudulent as to them, and claimed that the same should be set aside; that certain judgments mentioned in the complaint might be adjudged to be a lien on the land so conveyed, and that said land might be sold and the proceeds of the sale applied in satisfaction of the judgments.

The defendants answered separately; each denied the allegations of fraud. Mrs. Baker disclaimed any interest in the land, and Beneville distinctly claimed to be the “real and bona fide owner thereof,” by virtue of said conveyance. The case, therefore, seems to be within the sections of the Code cited. In Wood v. Hollister (3 Abb., 14) it was held that an action like this was one brought for the determination of interests in real property, and was, therefore, local, according to section 123 of the Code. (See also, Leland v. Hathorne, 42 N. Y., 547.)

But if the court had power to allow a discontinuance without costs, we think it should not have been exercised. On the trial, judgment had been rendered for the plaintiff with costs ; the General Term reversed the judgment, granted a new trial and awarded costs to abide the event. In whatever way the action might eventuate, therefore, whether by judgment or discontinuance, the prevailing party, under the order of the General Term, would be entitled to costs; and an order permitting a discontinuance without costs, is a substantial modification of the order of the General Term. That, we think, is not within the province of the Special Term.

We think also, that the plaintiff has shown no sufficient reasons why he should he exempted from the ordinary penalty of an unfounded litigation.

The orders appealed from must be reversed, with ten dollars costs and disbursements to each defendant.

Baknakd, P. J., concurred; Dykman, J., not sitting.

Order reversed, with costs and disbursements.


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    JOHN LOUGHRAN, Plaintiff, v. ARNETT G. SMITH and JOHN H. GRANT, Defendants.

      Lease not signed by lessm' — entry under — effect of— tenancy from yearr to yea/r.

    On the 22d of January, 1870, the defendants signed and delivered to the plaintiff an agreement to take from him a building for the term of five years from May 1, 1870, at $8,500 per year. The instrument was never signed by the plaintiff. On May 1,1870, defendants entered into possession. One remained until August 1, 1872, only; the other continued in possession thereafter; the rent was paid until February 1, 1873. In this action brought upon the agreement, to recover the rent for February, March, and April, 1873, defendants claimed that it was void, because it was not signed by the plaintiff. Held, that the instrument, under the circumstances of the case, was sufficient evidence of a parol lease, and that although it was valid for only one year from May 1, 1870, yet the defendants, having actually entered under it and continued in the occupation of the premises after the first of May in each year, became tenants of the plaintiff, and were both liable to pay the stipulated rent until the first of the next May.
    Motion for a new trial on exceptions ordered to be heard, in the first instance, at the General Term.
    On the 22d of January, 1870, the defendants signed the following instrument:

      “This agreement, made this day, January 22d, 1870, between John Laughran, of Brooklyn, of the first part, and A. G. Smith and J. IT. Grant, of the second part, do agree to take building, situated on the south-west corner of Broadway and Fourth street, Brooklyn, E. D., from May 1, 1870, for five years, at rent of three thousand five hundred dollars per year.
    “ The party of the first part agreeing to put in a plate-glass front.
    “ARNETT G. SMITH. “JOHN H. GRANT.
    “Witness : John I. Snediker.”
    Which was accepted, but never signed by the plaintiff.
    The defendants entered into possession on the 1st of May, 1870, the plaintiff having put in the plate-glass front as provided in the agreement. They continued in possession until about the 1st of May, 1873, paying the rent up to February first of that year.
    Upon the trial the counsel for the defendant offered to show that “ on the 1st August, 1872, A. G. Smith, this defendant, ceased to occupy these premises and no longer thereafter occupied them, but that they were occupied only by the defendant J. H. Grant, and such person or persons as he chose to and did associate with him, other than said Smith-; that during the period for which rent is claimed in this action, said Grant and his associates — not Smith — were the only occupants of the premises, or any part thereof, and that from and after the 1st of August, 1872, this plaintiff had knowledge and notice of the fact that said Smith had retired from the occupation of the premises, and that plaintiff thereafter collected and accepted the rent from the parties then in occupancy with knowledge of that fact; ” which evidence, upon plaintiff’s objection, was excluded.

      J. L. Perry, for the plaintiff.
    The agreement having been executed by the defendants for a valid consideration, and they having entered under it, they thereupon immediately became liable on their own undertaking, irrespective of any question as to its being binding on the plaintiff. (Merrett v. Olasson, 12 Johns., 106; Feeley v. Stew-a/rt, 5 Sandf., 105; Selvwyler v. Leggett, 2 Cowen, 663.) If, as a lease for five years, the agreement was void, yet it was not void as a lease from year to year, and the agreement was competent evidence, as fixing the rent for each year, upon which the defendants entered under it. (Clayton v. BlakeT/y, 8 T. R., 3 ; Doe v. Bell, 5 id., 471; Olasson v. Bailey, 14 Johns., 484; 16 Wend., 465; 26 id., 363.)

      Britton, Ely ds Snell, for the defendant Smith.
    The instrument admitted in evidence was not a valid lease at common law {Doe d&m. Marlow v. Wiggins, 4 Q. B., 467; Soprani v. S7curro, Yelverton, 19; 1 Platt on Leases, 9), or under the statute. (3 R. S. [5th ed.], 220, § 6 ; 2 R. S. [3d ed.], 134, 135, §§ 6, 8 ; Worrall v. Mrnvn, 1 Seld., 229 ; Townsend v. Hibbard, 4 Hill, 351; Qhcmplin v. Parish, 11 Paige, 405 ; Snyder v. Weefus, 53 Barb., 66; Oammeyer v. IMthera/n Ghwreh, 2 Sandf. Oh., 248 ; Oleres v. Willoughby, 7 Hill, 83, 85; Miller v. Pelletier, 4 Edw. Oh., 105; De Beirehe v. Podge, 36 N. Y., 537; Same Case, 47 Barb., 172.) It was void for want of mutuality, there being (because of no obligation by plaintiff) no consideration to support the agreement by defendants. Every bilateral agreement in which there is no consideration for the undertaking and promise on the one side, except the undertaking or promise of the other, requires to be signed by the parties on both sides in order to become a valid contract. {Cage v. Jagueth, 1 Lans., 209 ; Bingham on Sales of Real Property, 461; BueJdey v. Hardy, 3 Barn. & Oress., 355 ; Benedict v. Lynch, 1 Johns. Oh., 370 ; Springstem v. Powers, 3 Robt., 486.)
   Gilbert, J.:

The instrument subscribed by the defendants, coupled with the acceptance of it by the plaintiff, was sufficient evidence of a parol lease, which, though void for the term, inured as a tenancy from year to year, and governed the terms of the tenancy in all respects, except its duration. It is laid down in the ease of Soprani v. Skurro (Yelv., 19) that a lease executed by the lessee, and not by the lessor, is inoperative, both as regards the inteiest and the covenants, for the covenants depend upon the lease, and if there be no lease, there can be no covenant. But this proposition was overruled in Cooch v. Goodman (2 Q. B., 580; S. C., 2 G. & D., 159), in which the corn! were clearly of opinion that if a lease be executed by the lessee, and he enter and enjoy the lands demised, he is liable to an action of covenant by tbe lessor, though he, the lessor, did not execute the deed. They consider the case as falling within the general rule laid down in Comyn’s Digest (Fait, C. 2) that if one party executes his part of an indenture, it shall be his deed, though the other does not execute his part. But under the statute of this State, which avoids parol leases for a longer period than one year (2 B. S., 134, § 6), such lease was valid only for one year from the 1st of May, 1870, yet the defendants having actually entered under the lease, and continued in the occupation of the demised premises after the first of May in each year, they became tenants of the plaintiff, and liable to pay the stipulated rent until the first of May of the following year. The rent sued for accrued during the months of February, March and April, 1873. We think the defendants are clearly liable for it. (Reeder, admr., et al. v. Sayre, 6 Hun, 564, and cases cited; S. C., Ct. App., MSS.)

The' argument of the appellant, founded upon the supposed lack of mutuality of the contract, we think cannot be sustained. There was a mutual contract in each year, and although the contract, when made, was not mutually binding for the entire term, yet 'the actual enjoyment of the tenancy from year to year by the defendants, with the consent of the plaintiff, is a sufficient consideration for their promise to pay the rent. (L'Amoreux v. Gould, 3 Seld., 349 ; Justice v. Lang, 42 N. Y., 493; Morton v. Burn, 7 A. & E., 19: Kennaway v. Treleavan, 5 M. & W., 501.)

The court properly rejected the evidence offered by the defendant. It would not have established a surrender. (Scheffelin v. Carpenter, 15 Wend., 400.)

The exceptions must be overruled, and judgment ordered for the plaintiff. (

Barnajrd, P. J., and Dykman, J., concurred.

Exceptions overruled and judgment for plaintiff.


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    OLIVER W. BARNES, Appellant v. GEORGE H. BROWN and others, Respondents.

      Incorporation under general railroad, act — Oontraets—president interested in — Subscriptions for stock — must be for cash — Agreement to transfer conti'ol of company — is illegal — chap. 230 of 1868.

      An agreement of the directors to transfer a specified amount of the capital stock and a specified number of the bonds of a railroad company, convertible into stock at the stockholders’ option, to a person upon his agreement to pay all land damages to be awarded against the company, construct the road, and pay the expenses of conducting its affairs until the road was completed, no part of the work having then been performed and its value being unknown, is void.
    The acquiring by the president of the company, from the contractor, of an interest in such an agreement, is unlawful.
    An agreement by the president of a company to transfer his interest in a contract between the company and a third person, and the control and direction of the company’s affairs to another person or persons, is illegal and void.

      Semble, that under the provisions of section 14 of the general railroad act (Laws of 1868, chap. 230), requiring the directors to open subscription books and to distribute the shares pn'o rata among the subscribers, the directors have no authority to receive any thing but cash in payment for subscriptions to slock.
    Appeal from a judgment in favor of the defendants, entered upon a nonsnit directed at tbe Circuit, and from an order denying a motion for a new trial, made upon tbe minutestof tbe justice before wbom tbe action was tried.
    Tbe action was brought to recover tbe damages sustained by tbe plaintiff by reason of tbe breach of a contract made with tbe defendants Brown and Seligman. Upon tbe trial evidence was given tending to show that on tbe 26th of March, 1872, tbe plaintiff was tbe president and a director of tbe New York City Central Underground Railway Company; that be owned sixty out of tbe 117 shares of .stock issued by tbe company; that be bad certain claims against it, and that be bad an interest in a contract made by tbe company with one Byrne; that on that day be entered into a contract with Brown and Sebgman, by which, in consideration of tbe transfer by tbe plaintiff of bis said stock,' claims and interest in tbe Byrne contract to them; they agreed to pay to him $27,500, together with 2,000 shares of tbe capital stock of tbe company. Evidence was also given tending to show that it was part of tbe agreement that plaintiff should transfer to the said Brown and Seligman the control and direction of the company, by inducing certain directors to resign and allowing friends of Brown and Seligman to be elected in their places. The Byrne contract was not put in evidence, but the following recital of its contents appeared from the company books:
    “ Whereas, The second contract made with Mr. Francis P. Byrne, by which he has assumed to pay all the damage for which the company may be liable to private property, and all expenses ©f organization, conducting the affairs of the company, law expenses, engineering, company’s officers, salaries and expenses, etc., and the compensation therefor, in said contract mentioned, being $6,000,000 for the first division, extending from the city hall to near Forty-sixth street, and $2,500,000 for the second division, extending from the north end of the first division to the Harlem river, and the extension from city hall, southwardly to the Battery, and the proposed branch from the main line to the Central park, at Fifty-ninth street. And whereas, it was provided in said contract that should said sums be insufficient, the railway company would make the deficiency good. Now it is
    “Resol/ued, That the remaining one million and a half of the share cajfital of the company, and such portion of the issue of convertible bonds as may be necessary to be thereafter provided for, shall be, and is hereby appropriated as a further compensation to Mr. Byrne on the payments and liabilities assumed by him in said second contract, and the president is hereby authorized and instructed to place the said shares of stock and convertible bonds of the company at the disposal of Mr. F. P. Byrne, for the purpose named in said second contract. And whereas, the share capital of the company, as it now stands, is insufficient to meet the purposes of the company, it is
    “JResol/ued, That the president and secretary are hereby instructed' to prepare an issue of twenty-five millions of convertible bonds, which may be converted into share capital at the pleasure of the holder, such of said bonds as shall remain after making up the deficiency mentioned in the precéding resolution, shall be paid to F. P. Byrne, in consideration of his assuming the further liability of the payment of the interest on all the bonds of the company, as the same shall accrue, during the period of construction of the railway, and until the works are fully equipped in running order, and formally delivered over to the company as provided in the contract with said Byrne.

      “Sesofoed, That F. P. Byrne shall have the right to sublet the whole or any portion of the work to be done under said contract, and may assign not exceeding a half interest of his contract to one partner.”
    An interest of forty-five per cent in the contract was transferred to the plaintiff on the 19th of April, 1871. After the execution of the contract of March twenty-sixth, the control of the company passed into the hands of Brown and Seligman, who paid to the plaintiff the $27,000, and thereafter delivered to him certificates for what purported to be 2,000 shares of the stock of the company. The plaintiff claims that the stock was illegally issued and void, and brought this action to recover the damages occasioned thereby, on the ground that the defendants, the directors of the company, had conspired together to issue the stock illegally, and deceive and defraud him. He was nonsuited upon the grounds:
    First. That the contract between the plaintiff and Byrne, by which the former claims to have acquired an interest of forty-five per cent, in what has been spoken of as the contract between Byrne and the New York City Central Underground Railway Company, was void, for the reason that the plaintiff, at the time of acquiring the said interest, was the president of and a director of the New York City Central Underground Railway Company, and the plaintiff’s contract with Brown and Seligman, upon which this action was founded, was thus void because the assignment of Byrne of such interest in said contract, and the plaintiff acquiring and holding and undertaking to transfer such interest, were contrary to public policy.
    Second. That it appears by the plaintiff’s testimony that it was a part of his arrangement with Brown and Seligman, pursuant to which the latter were to give him 2,000 shares of full-paid stock of said Underground Railway Company, and a part of the consideration therefor, that the plaintiff, as the alleged holder of the -majority of the capital stock of the company outstanding on March 26,1872, was to transfer the direction and control and management of said Underground Railway Company to said Brown and Seligman without the consent of all the then stockholders, and, therefore, his agreement with Brown and Seligman, upon which this action was founded, was void, as contrary to public policy.

      Homer A. Nelson, Milton A. Fowler and John P. Ei/ngsford, for the appellant.

      L. F. Ohittenden, for respondent T. W. Park.

      Miohael H. Qardozo, for respondent Selover.

      Jolrn N. WhiUng and James P. lowrey, for the other respondents.
   Gilbert, J.:

The illegality of the transaction between the plaintiff and Brown and Seligman, does not consist of the mere fact that the plaintiff was incapacitated from acqiiiring an interest adverse to the corporation in the contract between the corporation and Byrne, but in the tendency of that transaction to a perversion of the property and effects of the corporation, and the consequent injury of its innocent stockholders and its creditors. It is not requisite that such should necessarily be the result of the transaction in order to make it illegal. It is enough that such is the tendency of it. The contract with Byrne is not before us, but the minutes of the meetings of the directors of the corporation, at which the plaintiff was present, in connection with the complaint, sufficiently reveal its general character and show that the compensation to Byrne was a gross sum for land damages, the construction and equipment of the railway, and expenses of conducting the affairs of the corporation, to be paid in' the stock and bonds of the corporation. We think the directors of the corporation were not authorized to enter into such a contract. The act of incorporation makes the corporation subject to the provisions of the general railroad act. (1 Laws of 1868, 465, chap. 230, § 3.) The directors thereof are required by the act of incorporation to open books of subscription for the capital, and to distribute the shares pro rata among the subscribers. (Id., 472, § 14.) Neither the act of incorporation nor the general railroad act confers any

authority upon the directors, to receive any thing but cash in payment for subscriptions to stock. Assuming, however, that the taking of moneys-worth, in a form equally beneficial to the corporation as cash, inpayment for subscriptions, would be legal (see Ang. and Ames’ Oorp. [10th ed.], § 517, n. 0.), certainly, the agreement with Byrne whereby the corporation agreed to issue stock to him, in a lump, for work unperformed, and the value of which could not have been known, was not founded upon an actual receipt of moneys-worth, nor upon an agreement that moneys-worth should be thereafter received. The capital stock of the corporation is a trust fund for the payment of its debts, and the directors of the corporation will not be permitted to waste it, either directly by releasing subscribers from their subscriptions, or by receiving payment for stock in the form of property or services, at more than a sum which a faithful trustee, in the honest exercise of his judgment, might deem the just value thereof. (Story’s Eq. Jur., § 1252; Upton v. Tribilcook, 1 Otto, 45; see, also, Boynton v. Hatch, 47 N. Y., 225 ; Schenck v. Andrews, 57 id., 133.) The history of this case shows the abuses which would flow from an opposite rule. Here the corporation, by the contract with Byrne, is despoiled of its stock — forty-five per cent of which is then shared with the plaintiff, who was a director ; then the plaintiff sells his share to Brown and Seligman, who immediately become directors. The agreement of Brown and Seligman, to deliver stock to the plaintiff, was to be performed by them after they should have become directors of the corporation, and was simply an agreement to deliver the stock as a homes to the plaintiff for the transfer of Ms interest in the contract with Byrne,an interest wMch could .be made available to plamtiff only through' a violation of Ms duty to the corporation, and which, when transferred by him to Brown and Seligman, could be realized by them only in violation of their duty to the corporation. It needs no argument to show that such a transaction is illegal, for it could not be earned out without a palpable and flagrant violation of trusts and duties wMch each of the parties owed to the corporation, its stockholders and its creditors. (Bliss v. Matteson, 52 Barb., 348, and cases cited; S. C., 45 N. Y., 22.)

It was no doubt a part of this transaction that the control of the corporation should be transferred to the defendants, although no stipulation to tbat effect was inserted in tbe mitten contract between tbe plaintiff and Brown and Seligman. Tbat, also, was illegal. (Fremont v. Stone, 42 Barb., 169.)

Tbe plaintiff not bemg entitled to tbe aid of tbe court, in compelling tbe delivery of mvy stock, by reason of bis own illegal acts, it is useless to inquire whether tbe stock delivered to him corresponded with tbe description contained in bis contract witb Brown and Seligman, or whether tbe defendants, or either of them, were guilty of tbe fraudulent conspiracy alleged.

Tbe judgment and order denying a new trial must be affirmed, witb costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment and order denying a new trial affirmed, witb costs.