text:
    RUSSELL ALLYN, Respondent, v. MARY A. THURSTON, Administratrix, etc., Appellant.

      Execution against recA estate of deceased judgment debtor— Oha/p. 295, Lams of 1850 — authority of surrogate under.

    The authority to allow execution to issue against the real estate and chattels real of a deceased judgment debtor, conferred upon the surrogate by chapter 295, Laws of 1850, is general and unqualified, and its exercise is made dependent upon no specified state of facts or proofs made to him.
    The statute provides that the surrogate “ may, on sufficient cause shown, make an order granting permission to issue such execution.” What shall constitute a sufficient cause for making such order, is a question, in a large degree, if not exclusively, for his decision and determination. ■
    Appeal from an order of the surrogate of Wayne county, allowing execution to issue on several judgments in this court against the property of the defendant’s intestate.

      8. B. McIntyre, for appellant. Osear Or mg, for respondent.
   Opinion by

Smith, J.

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

Order affirmed, with costs.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    In the Matter of the Application of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant, to Acquire Lands of ALEXANDER CUNNINGHAM.

      Report of commissioners to acquire lands — when set aside.

    Where, on an application to set aside the report of commissioners appointed to take lands for railroad purposes, it appears that the commissioners had talked privately with a person from whom they had obtained information discrediting the testimony of the claimant, and that the award to him was greatly inadequate, and that the neglect to oppose the confirmation of the report arose from the neglect or misbehavior of his attorney, upon whom the notice of motion was served: held, that the report was properly set aside.

      Appeal from an order made at the Special Term, setting aside the report of commissioners appointed to take land for railroad purposes.

      James M. Willett, for appellant. Spencer Clinton, for respondent.
   Opinion by

Smith, J.

Present — MulliN, P. J., Smith and Gilbeet, JJ.

Order affirmed, with costs.


author: Mullin, P. J.

text:
    HIRAM DUFFUNY, Respondent, v. SAMUEL FURGESON, Appellant.

      Sale of legacy — Fraudulent concealment — when an action may he maintained for.

    The defendant, the assignee of a legacy, sold the same to the plaintiff, representing to him at the time that the estate of the testator was amply sufficient for the payment thereof. The personal estate was insufficient, but the whole estate, both real and personal, was more than sufficient to pay the legacy. At the time of the sale the defendant had been informed by one of the executors that an action was about to be commenced to have it judicially determined whether or not the legacy was a charge upon the real estate, it being considered doubtful whether it was so chargeable. This fact the defendant fraudulently concealed from the plaintiff. The latter only received about one-fifth of his legacy, it being decided that the same was not a charge upon the real estate. Held, that the defendant was liable for the remainder of the legacy.
    Appeal from a judgment in favor of the plaintiff, entered .upon the verdict of a jury.

      Qeo. N. Kennedy, for appellant. D. Pratt, for respondent.
   Opinion by

Mullin, P. J.

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

Judgment affirmed.


author: Gilbebt, J.

text:
    JAMES WALKER, Appellant, v. JAMES H. SPRING, Respondent.

      Tenants in common — one cannot maintain replemn against the other — judgment in action of replevin.

    The plaintiff brought this action in replevin to recover the possession of a stallion, which was taken into his possession by process issued in this action by the plaintiff. Upon the trial the defendant claimed, and the jury found, that he and the plaintiff were tenants in common of the horse. Held, that a judgment directing a return of the horse to the defendant, and in case the plaintiff failed so to do, directing a judgment in favor of the defendant for the full value of the horse, was proper. That the plaintiff must return the horse or pay its full value, and afterward compel the defendant to account. Such an accounting could not be had in the present action. {Bussell v. Allen, 8 Kern., 178.)
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury.

      Wm. Rumsey, for appellant. W. B. Buggies, for respondent.
   Opinion by

Gilbebt, J.

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

Judgment affirmed.


author: Gilbert, J.

text:
    JOHN LAIRD and another, Respondents, v. CYRENIUS C. TOWNSEND, Appellant.

      Contract — hr each of — measure of damages.

    The rule of damages for the breach, by the seller, of a contract for the sale of merchandise, is the difference between the price agreed to be paid and the market-price thereof at the time and place of delivery. Where, however, the plaintiff had entered into a previous contract with another person for the sale of the same article at a higher price, arid the seller was notified of the fact at the time of making his contract, the profit which would have accrued to the plaintiff if the seller had performed his contract, may be recovered as damagea Booth v. Spuyten JDuyvil Bolling Mill Co. (8 N. Y. S. 0., 872) followed.
    Appeal from an order made at the Special Term, denying a motion for a new trial made upon a case and exceptions.

      This action was brought to recover the damages sustained by the plaintiff through the failure of the defendant to fulfill a contract whereby he had agreed to sell certain wool to the plaintiff. The General Term, after laying down the rule of damages stated above, expressed the opinion that the plaintiff had failed to establish a previous contract for the sale of the wool purchased of the defendant, and reversed the judgment.

      Charles JR. Kmg, for appellant. Ch. G. Judd, for respondents.
   Opinion by

Gilbert, J.

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

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


text:
    LIBBEUS M. NICHOLS, Appellant, v. GEORGE W. NICHOLS and another, Executors, Respondents.

      Covena/nt of seizin — when broicen — effect of such covenant.

    The covenant of seizin in this State is merely a covenant of title, and is broken at the moment it is made if the grantor has not title. It does not relate to the possession, as it did formerly; and possession of the land, at the time of the conveyance, by a third person, does not constitute a breach of the covenant, unless such possession is adverse, so as to render the deed void for champerty.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court, without a jury.

      William 8. Briggs, for appellant. Ch. G. Judd, for respondents.
   Opinion by

Smith, J.

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

Judgment affirmed.


text:
    FRANKLIN E. SMITH, Respondent, v. BETSY CHURCH, Appellant.
    Pa/rent— liability of, for purchases of child — ratification.
    One who seeks to make a parent liable for purchases of a child, must show a failure on the part of the parent to discharge the obligation to provide necessaries for the infant, and that the goods supplied were in fact necessaries. (2 Kent’s Com., 193; Olinton v. Rowland, 24 Barb., 634.)
    A. child, without authority, purchased certain goods for himself, on his mother’s account, who, when the bill was presented to her, at first hesitated, but finally promised to pay it: held, that by so doing she ratified his act, and was liable for the price of the goods.
    Appeal from a judgment of the County Court, affirming a judgment in the Justice’s Court, in favor of the plaintiff.

      William S. Briggs, for appellant. Gha/rles S. BaTeer, for respondeat.
   Opinion by

Gilbert, J.

Present — MulliN, P. J., Smith and GilbeRt, JJ.

Judgment affirmed.


text:
    CYRENA FERRY, Appellant, v. DELAVAN STEPHENS and another, Respondents.

      Gift — when complete.

    Defendants’ devisor, intending to give certain land to the plaintiff, executed a contract for the sale thereof to her, by which she agreed to pay $1,100; subsequently, he indorsed upon the contract a receipt in full, and delivered the same to her, although no money had been actually paid thereon. Held, that the indorsement of the receipt upon the contract, and the delivery thereof to the plaintiff, under the circumstances, constituted a valid gift to her of the debt due thereon, and that she was entitled to maintain an action for the specific performance of the contract against his devisees.

      Gray v. Barton (55 N. Y. 68) followed.
    Appeal from a judgment in favor of tbe defendants, entered upon tbe trial of this action by tbe court, without a jury.

      Halves <& Stevens, for appellant. Wm. JRumsey, for respondents.
   Opinion by

Gilbert, J.

Present — MulliN, P. J., Smith and Gilbert, JJ.

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


author: MulliN, P. J.

text:
    JOHN SHELDON, Appellant, v. ELSIE BUTTON, Impleaded with JAMES BUTTON and others, Respondents.

      Married, woman — earning» of— when her own property — right of creditor of husband to — Statute of distributions— Gift mortis eomsa — pyromissory note.

    Since the passage of the act, chapter 200 of the Laws of 1848, the compensation earned hy a married woman for services rendered to third persons — if the husband waives his claim thereto and permits her to enter such employment and to receive the compensation — is her property and not liable for his debts.

    A debtor has no right to give his services to his wife gratuitously, when he has no property with which to pay his creditors.
    The statute of distributions directs in whom the property of a deceased person vests on his decease; and the mere possession of such property by a person not authorized by the statute to take it, will not raise a presumption that such person is entitled to it. In order to prevent the statute from taking effect, a title under a will or other mode of transfer must be shown.
    The delivery by one brother about entering the army to another of a promissory note, with directions to give it to his mother should he not return alive, is not a valid gift to the mother. {Irish v. Nutting, 47 Barb., 870.)
    Appeal from a judgment in favor of the defendants, entered on tbe report of a referee, in an action in the nature of a creditor’s bill, brought to reach equitable interests of James Button in property in the hands of the other defendants.

      S. Hubbard, for appellant. A. J. Abbott, for respondents.

       See Beau v. Kiah (4 Hun, 174) for the law in cases in which the husband does not assent to the services being performed by his wife.

   Opinion by

MulliN, P. J.

Present — MulliN, P. J., Smith and Gilbert, JJ.

Judgment reversed and a new trial granted before another referee, costs to abide event.


text:
    HENRY D. KIPP and others, Respondents, v. PHILIP J. MEYER, Appellant.

      Executory contract of sale — recevpi of part of goods by vendee — effect of.

    Although the vendeé is hound by his acceptance of a portion of several articles contracted to he sold, after ^.n opportunity to examine them has been had (Gaylord Manuf. Go. v. Allen, 58 ÍT. Y., 515 ; Seed v. Randall, 29 id., 358; McGormiclc v. Sccrson, 45 id., 265), yet the vendor is not thereby excused for the non-fulfillment of his contract as to the residue of such articles. If the ven-dee refuse to receive the whole of the inferior articles, or any part of them, the vendor is liable in damages for the non-fulfillment of his contract in full. He cannot relieve himself from the fulfillment of the contract on his part, by inducing the vendee to accept some part of the articles contracted to be delivered.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      McDonald & Dames, for appellant. M. H. Peck, for respondents.
   Opinion by

Smith, J.

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

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


text:
    WELLER R. DALRYMPLE, Plaintiff, v. WILLIAM HUNT and another, Defendants.

      General denial — what not admissible under.

    Where, in an action brought to rescind a contract, on the ground of fraud, an answer is interposed denying each and every allegation of the complaint, held, that the defendant can give no evidence except such as tends to disprove the allegations of the complaint; and it is error to allow him to introduce the record of a judgment showing a former suit for the recovery of damages for the fraud alleged in the complaint.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.

      A. M. Bmgham, for plaintiff. Hakes <& Siemens, for defendants.
   Opinion by

Smith, J.

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

N ew trial granted, costs to abide the event. •


author: Gilbeet, J.

text:
    CORNELIUS R. PARSONS, Respondent, v. WILLIAM T. GARNER, Appellant.

      Bight of way — injunction—Deed—what passes umde/r.

    On a conveyance of ]and, whatever is in use as an incident or appurtenance to it, passes with it; and whether a right of way or other easement is embraced in a deed, is always a question of construction of the deed, having reference to its terms and the practical incidents belonging to the grantor of the land at the time of the conveyance. {Huttemeier v. Albro, 2 Bosw., 546; S. 0., 18 N. Y., ■ 48.)
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was brought for the purpose of perpetually enjoining the defendant from erecting a wall along the east line of premises claimed to be owned by him, and adjoining the lands of the plaintiff on the west. The plaintiff claimed to have a right of passage over said premises which would be obstructed by said wall. The action was tried before a referee, and from the judgment entered upon his report this appeal is taken.

      W. F. Cogswell, for appellant. George F. Danforth, for respondent.
   Opinion by

Gilbeet, J.

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

Judgment affirmed, with costs.


text:
    WILLIAM PARSONS, Respondent, v. WILLIAM W. BROWN, Impleaded, etc., Appellant.

      General Term — new trial — judgment below not sustained, by the evidence.

    The General Term has power to pass upon the weight of conflicting evidence on a trial before the court at Special Term, and it is its duty to examine the evidence, and, if the result is not in accordance with the truth, to reverse the judgment and direct a new trial. {Finch v. Pa/rlcer, 49 ÍT. Y., 8; Macy v. Wheeler, 30 id., 231; Smith v. JBtna Life Ins. Go., 5 Lans., 545.)
    Appeal from a judgment in favor of plaintiff, entered on the report of a referee, in an action brought to recover of the defendant the amount of a promissory note, given to the plaintiff by one Lyon, and indorsed by the defendant Brown. The question in the case was one of fact as to the revocation, before the delivery of the note, of a power given to Lyon to indorse the defendant’s name upon it. The court at General Term was of opinion, that the finding of the referee in favor of the plaintiff was not sustained by the evidence, and reversed the .judgment, and granted a new trial at Circuit, costs to abide the event.

      E. G. Prindle, for appellant. Grrnes dk Pitts, for respondent.
   Opinion by

Gilbert, J.

Present — MulliN, P. J., Smith and Gilbert, JJ.

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


text:
    ALONZO C. YATES and another, Respondents, v. HENRY C. HOFFMAN and ISRAEL McDANOLDS, Appellants.

      Partnership — legal representatives of deceased partner — liability of — Executors— form of action against — costs against— Execution — effect of return milla bona.

    When tlie legal representatives of a deceased partner take proceedings for an accounting against the surviving'partner, and have a receiver appointed of the partnership assets, held, that a judgment creditor of the firm, who has issued execution against the survivor, which was returned nulla bona, although such execution was not issued until after the receiver was appointed, may maintain an action against the legal representatives oí the deceased partner.
    In an action against executors for the recovery of an indebtedness which accrued during the life of the testator, the complaint may allege that they are sued as executors, or may set out their representative character, to show that the action is brought to recover a demand owing by their testator in his lifetime.
    A return of nulla bona, by the sheriff, to an execution, is prima facie evidence of insolvency.
    Appeal from a judgment in favor of the plaintiff, entered on the decision of the court at Special Term.

      John 0. Hunt, for appellants. Win. (J. Ruger, for respondents.

       Decided at April term, 1875.

   Opinion by

MulliN, P. J.

Present — Mullin, P. J., SMITH and Gilbert, JJ.

Judgment affirmed, with costs.


text:
    SETH BAKER and another, Appellants, v. JOHN J. LEVER, and others, Administrators, etc., Respondents.

      Rermedy of purchaser when defrauded by vendor - active not required pf purchaser.

    When a purchaser of property is defrauded by the seller, the former is entitled, if he so elect, to rescind the contract, and to have restored to him whatever he may have paid toward the purchase-money. To entitle him to do this he must return, or offer to return, the property purchased, promptly upon the discovery of the fraud.
    A person deceived by the fraudulent, mis-statements of another, owes Mm no duty of active vigilance in the discovery of the fact that they are false.
    In this case, the death of defendant having made incompetent the only evidence plaintiff had to establish Ms case, the proper judgment was ordered by the General Term, instead of a new trial being ordered.
    Appeal by the plaintiff from a judgment entered on the report of a referee.

      Hamilton Ward, for appellants. HaJees <& Stevens, for respondent.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., SMith and Gilbert, JJ.

Judgment reversed, and judgment ordered that administrator's pay to plaintiffs costs of action and of appeal.


text:
    THE STATE BANK OF OLEAN, Respondent, v. WILLIS F. SHAW, Impleaded, etc., Appellant.

      D&mwr&r — jwrat to verification notparrt of complaint — remedy for error appecvrmg in jurat.

    In an action on a note, dated June 18, 1874, and payable two months after date, the jurat on the verification of the complaint was dated June 24, 1874. The defendant demurred on the ground that the complaint did not state facts constituting a cause of action. Held, that the jurat did not form part of the complaint. (Q-eorge v. McAvay, 6 How., 200; Smith v. Holmes, 19 N. Y., 271.)
    The proper remedy for the defendant in such cases is by motion.
    Appeal from an order overruling a demurrer to the complaint.

      JD. H. Bolles, for appellant.. Gary <& Jewell, for respondent.
   Opinion by

Mullin, P. J.

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

Order affirmed.


text:
    WILLIAM H. TAYLOR, Administrator, etc., of CATHARINE TAYLOR, Deceased, Respondent, v. JAMES H. KELLY, Appellant.
    Gift— manual delivery not necessary.

    To constitute a gift a manual delivery of the thing given is not necessary. A delivery to a third person as trustee or bailee of the donee, is sufficient to pass the title, and the donor may, by an apt declaration to that effect, convert himself into a trustee for the donee.

      Gray v. Barton (55 N. Y., 72) followed.
    Appeal from a judgment of the Livingston County Court, in favor of the plaintiff, in an action brought for the conversion by defendant of a cow and calf, the property of the plaintiff.
    -, for appellant. J. B. Adams, for respondent.
   Opinion by

Gilbeet, J.

Present' — -Mullin, P. J., Shith and Gilbeet, JJ.

Judgment reversed and a new trial granted.


text:
    GATES SHERWOOD and others, Executors, etc., Appellants, v. THE MERCANTILE MUTUAL INSURANCE COMPANY, Respondent.

      When v&rdiat may not he directed by the eowrt— conflict of evidence.

    The court is not authorized to direct the jury to find a verdict for a party, when there is a conflict in the evidence, or a dispute about the facts, unless there is such a preponderance of evidence on one side that a verdict. to the contrary would be set aside as being against evidence. (Stone v. Flower, 47 ST. Y., 566; 3 Wait’s Pr., 181, 182.)
    Whether there be any evidence is for.the court; whether there be sufficient evidence is for the jury. (Anderson v. Moriee, L. R. [10 C. P.], 58.)

      Appeal by the plaintiffs from an order denying a new trial.

      F. Porter, for appellant. George B. Hubbard, for respondent.
   Opinion by

Gilbert, J.

Present — MulliN, P. J., Smith' and Gilbert, JJ.

Order reversed and a new trial granted, with costs to abide the event.


text:
    In the Matter of DRAINING CERTAIN SWAMP LANDS in the Town of Chili, Monroe County.
    Appeal from an order of the Monroe County Court, reversing the determination of the commissioners in the matter of draining certain swamp lands, in the town of Chili.
    The case arose under the general drainage act, passed in 1869, and amended in 1811 (Sess. Laws 1869, vol. 2, chap. 888, p. 2223; Sess. Laws 1871, chap. 303), and was heard at this term pursuant to an order of the court directing a reargument.
    The court held, that the reversal by the county judge of the determination of the commissioners, upon the ground that it was not necessary for the public health that the lands described in the petition of the land owners upon which this proceeding was instituted, should be drained, was conclusive upon that question, this court having no power to review the facts, the appeal to it being limited, by the terms of the act (§ 12 of act of 1869), to questions of law.
    The court further say that the provision in respect to the public health, was doubtless inserted in the act of 1869, as an amendment of the general drainage act of the Revised Statutes, because the constitutionality of that act had been questioned, and to obviate that objection which was clearly sound. {Woodruff v. Fisher, 17 Barb., 224, 231; White v. White, 5 id., 483; Cooley’s Const. Limitations, 509, 510.)

      F. L. Duramd, for appellants. G. F. Danforth, for respondents.
   Opinion by

Smith, J.

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

Order and decision of the County Court affirmed, with costs.


text:
    THE PEOPLE ex rel. THE OSWEGO CANAL COMPANY v. THE CITY OF OSWEGO and others.

    Writ of certiorari to review the proceedings of the city of Oswego and the assessors thereof, in taxing the relator upon its stock in said city, in 1873. The General Term held: First. That as to matters relied upon to exempt a person or his property from taxation, which, from their nature, are only known to him or the witness he may produce, where there is no evidence impairing materially the force of it known or proved to the assessors, the evidence on the part of the person assessed concludes the assessors, and they must assume the matters sworn to to be true, and correct the roll accordingly. Second. If the assessors know of facts, or they are proved before them, rebutting or essentially qualifying the evidence on the part of the person assessed, and he does not, on being informed of the facts which are known to the assessors, satisfactorily rebut or explain them, they are not concluded by his evidence.
    Third. The assessors are not in any case concluded by the-opinion of witnesses as to the value of either real or personal property, unless the evidence on the part of persons assessed is the only evidence before them, and they have no information or evidence that leads them to different or higher estimates.

      G. T. Richardson, for relator. IF. A. Poucher, for defendants.

       Decided at April term, 1875.

   Opinion by

MulliN, P. J.

Present — Mullih, P. «L, Smith and Gilbert, JJ.

Assessment reduced, and as reduced affirmed.


text:
    THE WESTERN NEW YORK LIFE INSURANCE COMPANY, Respondent, v. DE WITT W. CLINTON, WILLARD F. LEONARD and others, Appellants.

      Principal and mrety— liability of swrety wh&re powers of principal cure increased.

    Appeal from a judgment entered on .tbe report of a referee. The action was on a bond, executed by the defendant De Witt W. Clinton, as principal, and the other defendants as sureties.

    On or- about April 1, 1871, as the referee finds, a contract was executed between the plaintiff and DeWitt W. Clinton, whereby the latter was appointed and employed by the plaintiff, a life insurance company, as its agent in certain counties of Western New York, “ to procure applications for insurances upon the lives of individuals * * * and to effect all kinds of insurances authorized by said company.”
    This -contract, as the referee found, “ was shown and read to the sureties ” at the time they executed the bond, and he also found, there was “ no proof that the sureties- were informed of any other or different agreement at any time prior to the execution of the ’bond, than the said agreement.”
    About the same time another agreement, of which the sureties had no knowledge, was entered into between the plaintiff and Clinton, by which his powers and responsibilities, and consequently the liabilities of his sureties, were increased. The referee held the sureties liable for the breach of duty of the agent under bót'h contracts. The General Term held, that to hold them liable for the performance of the latter contract, would be a fraud upon them (Burge on Suretyship, 224, 225; JPideoelc v. Hinton, 3 B. & C., 605), and reversed the judgment and ordered a new trial to be had before another referee, costs to abide the event.

      E. Oountryman, for appellants. Tarbox&Sherwin, for respondent.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., SMith and Gilbebt, JJ.

Judgment reversed and new trial ordered before another referee, costs to abide the event.


author: Mullot, P. J.

text:
    JOHN N. POMEROY, Respondent, v. SAMUEL PIERCE, Appellant.
    Evidence— Employment of counsel by attoi'ney — liability of client.

    Appeal from a judgment in favor of tbe plaintiff!, entered upon the report of a referee.
    The action was brought to recover for professional services rendered for defendant by the plaintiff as a counselor at law. O. M. Benedict was the sole attorney for defendant in the suit in which the services were alleged to have been rendered. It was claimed that the plaintiff was employed by Benedict with the consent and approval of the defendant. The defendant gave evidence tending to show that he employed Benedict to manage the case for a specified sum of money, and that he never recognized the employment of plaintiff. The defendant’s counsel offered, on the trial, to show an agreement between defendant and Benedict, that he, Benedict, was to take charge of the case for defendant, and conduct it to judgment -in the Court of Appeals, for a sum agreed upon. This evidence was excluded by the referee. The court at General Term held, that the fact that such an agreement had been made between defendant and Benedict, for the entire proceedings in the cause, had a bearing on the probability of the employment of the plaintiff, especially as there was no evidence in the case, except by inference, that such agreement between defendant and Benedict had been modified or rescinded, and that it should have been taken into consideration by the referee in making his decision.
    The defendant’s counsel asked a witness whether he had heard defendant consult with plaintiff, and with whom the consultations were invariably had; whether he heard consultations with Benedict, and whether there were any consultations with plaintiff in his presence. The referee refused to receive the evidence, but decided that any fact or conversation which took place on the occasions referred to might be proved. The General Term held, that, as the object of the question was to prove that no consultations were had between plaintiff and defendant in the presence of the witness, wbo, it appeared, was interested in tbe litigation with the defendant, and accompanied bim from time to time to Rochester to see counsel, the permission of the referee did not cure the error made by him in refusing to allow in evidence the answer to the question.

      A. J. Willem, for appellant. John N. Pomeroy, for respondent.
   Opinion by

Mullot, P. J.

Present — MulliN, P. J., SMITH and Gilbert, JJ.

Judgment reversed, and new trial ordered before another referee, costs to abide event.


text:
    THE PEOPLE ex rel. WELCOME ANDREWS and others, v. THE BOARD OF SUPERVISORS OF ERIE COUNTY and others.

      Oharp. 419, of 1874.
    Ceetioraei to review the proceedings of the board of supervisors of Erie, of the town board of the town of Sardinia, and of certain commissioners appointed by chapter 419 of the Laws of 1874, to act in reference to constructing a town hall in the village of Sardinia. The General Term held, that the commissioners had not executed the bonds required by the act to be given by them before entering upon the discharge of their duties, and therefore reversed the proceedings.

      Thomas Oorlett and Johnson <& Knight, for relators. Lewis, Gurney da Sill, for respondents.
   Opinion by

Smith, J.

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

Proceedings reversed, with costs to the relators against the commissioners.


text:
    BENJAMIN F. YOUNG, as Administrator of RICHARD T. P. PULTENEY, Deceased, Respondent, v. JOHN HEERMANS and others, Administrators, etc., Appellants.

      Oomeymce infrcmd of creditors —Discovery cf property.

    Appeal by defendant Heermans from a judgment of tbe Steuben county Special Term, setting aside certain conveyances made by one Joseph Fellows to John Heermans.
    Pulteney claimed to be a judgment creditor of Fellows, and that by the conveyances he was prevented from collecting his judgment.
    The court held, that the instruments which were held by the Special Term to be conveyances of Fellows’ property, were, in reality, mere powers of attorney and revocable at the pleasure of F.; but held, further, that as Heermans got possession of the property from F., and claimed to hold it by virtue of those instruments, although they were entirely ineffectual to transfer it to him, yet, as the plaintiff did not know what that property was, and was therefore unable to levy upon it under his execution, the court would appoint a receiver of it and require its delivery to him, to the end that it might be sold and plaintiff’s debt satisfied.
    The heirs of Fellows not being parties to this suit, and therefore their title not being affected thereby, the court allowed the plaintiff to elect either to proceed against the personal property only or to apply to have the heirs brought in as parties.

      Brown <& Hadden, for appellants. William Rumsey, for respondent.
   Opinion by

Mullin, P. J.

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

Ordered accordingly.


text:
    EMPIRE STATE LIFE INSURANCE COMPANY v. C. HYDE BECKWITH, Impleaded, etc.

      Laches.

    Appeal from a judgment in favor of the plaintiif, entered upon the report of a referee.
    The defendant gave his promissory note, upon which this action was brought, to the agent of the plaintiff for a policy of insurance, supposing it was to be issued by plaintiff. The plaintiff procured a policy to be issued by the Life Association of America, which was delivered to defendant. About November 1, 1872, a letter was received at defendant’s house which was opened by his wife, who informed him that his policy had come; but he did not read the policy nor ascertain that it was issued by the Life Association of America. He held the policy about four months without repudiating it. The referee held that four months was too long a time for him to omit all efforts to find by whom the policy was issued, and gave judgment for plaintiff which was affirmed by the General Term.

      D. W. Oameron, for appellant. P. 0. Williams, for respondent.
   Opinion by

MulliN, P. J.

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

Judgment affirmed.


author:
DoNohue, J. :
      DaNiels, J.

text:
    THE ERIE RAILWAY COMPANY, Appellant, v. CORNELIUS VANDERBILT, Respondent.

      Corporation — liability of persons taking its funds in settlement of controversy with directors indmidually — Ih'audulent use of corporate name by directors — effect of.

    When, for tlie purpose of settling a contest between the individual directors of a corporation and third persons, the corporation is made to pay the damages occasioned hy the fraudulent acts of the directors, the person talcing the money, with knowledge thereof, is liable to the corporation for the same.
    When actions are brought nominally for the protection of a corporation, hut in reality for the purpose of requiring its officers to settle, out of the corporate property, their individual liabilities, it is an abuse of the process of the court, and funds of the corporation paid out hy the directors in settlement of such suits may he recovered hy it.
    A person who has received from a trustee of a corporation the corporate property, . with knowledge thereof, in satisfaction of the debt of such trustee to him, cannot defeat an action brought against him hy the corporation for the recovery thereof, on the ground that no privity or relation existed between himself and the corporation.
    Where trustees use the name of a corporation in matters conducted for their private benefit, with knowledge on the part of him with whom they are dealing, it is no defense to an action brought hy the corporation for a fraudulent disposition of its property that it is in pa/ri delicto, because its name has been used in committing the fraud.

      Appeal by plaintiff from a judgment entered on the decision of tide court dismissing the complaint.

      W. W. Mac Farland and Wm. I). Shipman, for the appellant.
    Officers of corporations to whom the care and management of the corporate property is by law confided, are trustees of that property, bound by the strictest rules of law to execute their trust literally, intelligently and honestly, and to that end to devote the corporate property to its appropriate and intended uses, and none other. (Perry on Trusts, § é30; Morrett v. Paske, 2 Atk., 82; Powell v. Glover, 3 P. Wms., 251; Great Luxemburg Ry. Go. v. Magnay, 25 Beav., 586; Chaplin v. Young, 33 id., 414; Bowes v. Toronto, 11 Moore P. C. C., 463; Doeker v. Somes, 2 M. & K., 665; Perry on Trusts, § 207; Butts v. Wood, 37 N. Y., 317; Coleman v. Second Avenue piailroad Co., 38 id., 201; Bliss v. Matteson, 45 id., 22; European, etc., R. R. Co. v. Poor, 59 Me., 277; Emporium, etc., v. Emrie, 54 Ill., 345; Aberdeen Rd. Co. v. Blañhie, 1 McQueen, 482; In re Anglo Creek Steam Co., L. R. [2 Eq.], 1; In re Madison Bank, id., 216; Simons v. Vulcan Oil Co., 61 Penn. St., 202; Hoffman Coal Co. v. Cumberland Coal Co., 16 Md., 456; Kimmell v. GeeUng, 2 Grant’s Cases, 125; Bradbury v. Barnes, 19 Cal., 120.) One who receives trust property with either actual or constructive notice of the trust, and with either actual or constructive notice that it is being dealt with contrary to the terms of the trust and in breach thereof, is liable and bound to restore the trust property or its value so wrongfully diverted from it. (Story’s Eq., § 1258; Bliss v. Matte-son, 45 N. Y., 22; Emporium, etc., 54 Ill., 345 ; Story’s Eq. Jur., § 1257; Perry on Trusts, §§ 825, 855; Hill on Trusts, [m. p.] 520 ; Lowry v. Commercial and Farmers' Bank, Taney’s Circuit Ct. Dec., 310; Shaw v. Spencer, 100 Mass., 382.) One who receives trust property as security for, or in satisfaction of, an antecedent debt or obligation due to himself, is not a bona fide purchaser thereof, and is liable to refund even without notice of the trust either express or implied. (See the foregoing authorities, and also Perry on Trusts, §§ 217, 272; Bassett v. Noseworthy, 2 Lead. Cas. in Eq., 103, 109; Perry on Trusts, §§ 828, 834.) Applying to this case the legal principles above stated, it is now submitted that the disposition which was made of the money and property of the Erie Railway Company by its officers, was unlawful ; that it was a fraudulent misappropriation thereof, involving a flagrant breach of trust; that the defendant, Vanderbilt, received the money and bonds with full knowledge of its being the money and stock of the Erie Railway Company, and that it was being misappropriated in breach of trust. Mr. Vanderbilt had no claim against the Erie Railway Company. Not one of those actions was brought for the enforcement of any claim against the company with a view to extract money from the treasury of the company in satisfaction of a claim against it, but every one of them was avowedly brought for the express purpose of protecting the treasury of the company against the alleged fraudulent conduct of the agents and officers of the company. So that this money and stock of the company was not parted with by its officers or received by the defendant in satisfaction of any claim, just or unjust, against the Erie Railway Company. Only a little reflection is required to see that nothing can be more absurd than that the directors of the corporation should be at liberty to employ the funds of the corporation in the purchase of all the stock of the stockholders of the company, or so much thereof as might suit their interests or their fancies. This is a grossly improper use of the funds and diversion of them, even if the act be done in good faith, from the legitimate purposes and objects of the corporation.

      Wm. A. Beach and John K. Porter, for the respondent.
    Where the parties are not in pari delicto, and one, being a corporation, has received money or property from the other, through an executed contract ultra vires, that other party may maintain an action for its recovery. (Tracy v. Talmadge, 14 N. Y., 162, 179 ; Ourtis v. Leavitt, 15 id., 236, 284 ; Oillett v. Philips, 13 id., 114 ; Leavit v. Palmer, 3 id., 19 ; reviewed, 15 id., 101.) The assumed trust relation does not exist. The Erie Railway Company is not the trustee of its stockholders. It is the legal owner of, its corporate property, empowered to dispose of it absolutely, except as restrained by legislative act. The trust is between it and the State. It is the creature of the State, exerting powers delegated to it by the State. (Karnes v. Rochester R., 4 Abb. [N. S.], 107.) The argument for plaintiff, therefore, fails, for the several reasons: 1. That if the act chai’ged be unlawful, it being fully performed and plaintiff standing in pari delicto, has no remedy. 2. That the purchase from defendant was not uli/ra vires, but strictly in performance of plaintiff’s legal duty. 3. That the notion of a trust is not applicable. But if so, plaintiff is not the proper sole party, and -cannot in its own name remedy its own unlawful act. The action is not maintained upon the ground of fraud. The court below found against the plaintiff upon that issue. Not a single allegation of fraud contained in the complaint is proven, or attempted to be proven. Admitting plaintiff’s theory, that the various litigations against it were maintained by defendant to compel it to purchase his stock, there was no fraud. The whole transaction was then a compromise of a doubtful claim, and obligatory, although it should afterward appear that the claim was unfounded. (.Russell v. Gook, 3 Hill, 504.) The law encourages compromises. (Vos-bu/rgh v. Teuton, 82 N. Y., 561.) The corporation had ample power to effect the compromise. They may assign in trust for the benefit of creditors. (De Ruyter v. St. Peter's Church, 3 Oomst., 238 ; HurTburt v. Garter, 21 Barb., 221; Nelson v. Pdwards, 40 id., 279.) And they have power to submit controversies to arbitration. (Brady v. Mayor of Brooklyn, 1 Barb., 584.) And a priori they may compromise and settle contested and doubtful claims. Having the power and exerting it, settlements thus made are final, unless fraudulently procured. And of that there is no pretense. Plaintiff’s officers were not deceived. They were fully instructed and acted under the advice of eminent counsel. The settlement was not unequal. Defendant obtained relief from spurious stock at the price he considered it intrinsically worth. He secured but scanty compensation for losses inflicted by the •fraudulent and unlawful acts of plaintiff’s officers. .But whether the compromise was equal or unjust, is entirely immaterial. Plaintiff’s officers, guided by skillful counsel, deemed it judicious. It follows, that the transaction between the parties cannot be disunited, and plaintiff recover the $1,000,000 as a distinct payment, separate from the compromise. Plaintiff having received the consideration, there must be complete restitution. (Bissell v. Miehá-ga/n Southern R. R., 22 N. Y., 258, 268 ; Parish v. Wheeler,
      id., 494, 508 ; JDe Graff v. American Linen Thread (Jo., 21 id., 124, 127.) The issue of stock at less than par, through the form of convertible bonds, was invalid and in fraud of the law, and the defendant, as a purchaser of the new stock, had a just claim against the company for the amount paid by him for such stock. (Sturges v. Stetson, 1 Bissell’s (U. S.) R., 246, decided in 1858, by Judge MoLeaN ; Fosdick y. Sturges, 3 Phila. R., 312, decided in 1858, U. S. Circuit Co. [Pa.] ; Laws of 1850, 225, § 28, subd. 10.) If it was issued in fraud of law, by the wrong 'of the company’s officers, whether in absolute violation of the charter, or in a case and for purposes unauthorized by statute, the company was liable to the defendant for the amount paid by him on the fraudulent certificates put in circulation and attested by the corporation. (Bruff v. Main, 36 N. Y., 200, 205 ; Shotwett v. Mali, 38 Barb., 472; McNeil v. Tenth National Bank, 46 N. Y., 325, 331; New Haven JR. R. Gase, 34 id., 30, seventh. and eighth head-notes; Titus v. Great Western Turnpike Go., 5 Bans., 250, 255.) “ To render valid the compromise of a litigation, it is not necessary that the question in dispute be really doubtful, if the parties Iona fide consider it to be so.” (.In re Midland Ra/ihca/y Go., etc., 4 De Gex, McNaughton & Gordon, 356 ; Russell v. Gook, 3 Hill, 504, 506, 507.) Nor is it material to the validity of the compromise that a suit should already have been brought to assert the claim. (101 Eng. Com. Law [1 Best & Smith], 559, 569, 570; Russell v. Gook, 3 Hill, 504, 506.) The plaintiff is not a “ moneyed corporation; ” and its general authority to purchase its own stock, is established by the judgment of the Court of Appeals, as well as by the antecedent authorities. (1 R. S., 598, § 51; City Bank of Columbia v. Brice, 17 N. Y., 507.) It has uniformly been held that when the transaction is an isolated one, incidentally occurring in the course of the corporate business, it will not be treated as an act ultra vires. (Steam Navigation Go. v. Weed, 17 Barb., 378, 383; Potter v. Bank of Utica, 5 Hill, 490; Suydam v. Morris Canal and Banking Go., 6 Hill, 217 [Court of Errors] ; Taylor v. Chichester Railway, 4 Hurl. & Colt., 409 [Excli., 1866]; Homs Iois. Go. v. North Western Packet Go., 32 Iowa, 246; Augusta v. Leadbitter, 16 Me., 47, 48 ; Nelson v. Inhabitants of Milford, 7 Pick., 26, 27.) Even if the transaction had been between the company and the defendant, and bad been ultra vires, the company, after its execution and consummation, could not recover back what the defendant received. (Bissell v. Michigan Southern R. R. Go., 22 N. Y., 259, and authorities cited at pages 278 and 279 ; Life Ins. Go. v. Mechanic Ins. Co., 7 Wend., 31; The State of Indiana v. Moran, 6 Hill, 37; Buffett v. Troy and Boston R. R. Go., 40 N. Y., 168, 172; Sacketts Harbor Bank v. Lewis Go. Bank, 11 Barb., 213; Sil/oer Lake Bank v. North, 4 Johns. Ch., 370 ; 22 N. Y., 260; id., 260, 290, 308, 309; SchroedeSs Case, L. R. [11 Eq. Oas.], 140, 141 [1870].) If the plaintiff has been prejudiced by any .unauthorized act of its officers, its remedy is against them, and not against the defendant. (Verplcmch v. Mercantile Ins. Go., 1 Edw. Ch., 84, 94.)
   DoNohue, J. :

The complaint in this case sets out, in substance, and the facts prove, that in 1868 several suits were brought by parties named against the plaintiff, corporation, and its officers and trustees, for matters alleged in those suits to be frauds on the plaintiff and its stockholders; that the claims made in such suits were for the protection of the plaintiff and its stockholders; no damages were asked against plaintiff herein, and the relief asked was for the benefit of plaintiff; that-the defendant was not nominally a party to those suits, and denied any interest in them. The complaint in this case further alleges, in substance, the settlement of those suits, and a payment of money of the plaintiff to defendant, by which plaintiff was defrauded. The complaint offered to rescind all such contracts, and asked that the money and securities be returned to it. The answer substantially denies the connection of the defendant with the suits referred to, or his interest in any of them. He denies any connection or interest in any of these compromises or payments on the part of the present plaintiff.

The substance, in fact, of allegation and denial is, that the plaintiff contends, and defendant denies, that certain suits, brought at the time to compel the performance of justice by certain defaulting officers to the company, were settled by the defendant and his friends by not taking the money from the alleged defaulters, but settling with them by taking more money out of the company plaintiff to settle stock speculations in which such officers had obtained an advantage over the defendant and his friends.

Neither time nor opportunity has enabled the preparation of an opinion giving minutely the facts at which I have arrived, and on which my conclusion is founded, but the facts, it seems to me, can be summed up in a short space.

■ Drew and others were in the control of the Erie Railway Company, as its trustees. The defendant had given an unlimited order to buy that stock. One of the directors of the railroad company acting with Drew, taking advantage of a clause in the charter of the Erie Railroad Company, which allowed the issue of bonds convertible into stock, procured, as the former complaint alleged, fraudulently, the issue of bonds which were converted into stock and used in filling contracts for stock sold defendant. It seems to me at this point proper to say, that the defendant cannot contend such issue was valid, because, if he does so, then there was nothing to settle, as we shall presently see, and the proceedings that resulted in the settlement were, in law, a fraud on plaintiff. The defendant and those acting with him, finding that the contracts under which they had hoped by taking stocks to control the road, were being filled by stock thus issued (the money for the stocks, I shall assume, the plaintiff received), applied to the court to prevent the issue, and obtained an injunction against such issue, and asked for relief against the trustees, and that they account to the present plaintiff. The defendants in those suits violated that injunction and continued to issue the stock. The friends of the defendant, who brought those suits, succeeded in driving the directors of the plaintiff out of the State by the legal proceedings “commenced by them for violation of the injunction.

The parties plaintiff in those suits and the defendant had the right, if they saw fit, to hold the present plaintiff, as in the case of the Schuyler frauds; to attack the issue of the stock and make the railroad company responsible for the, act of their agent in so issuing it. But the facts disclosed show that that would not meet the object the then plaintiffs wanted, and the scope of those suits sets up that the directors of the plaintiff had, in fraud of its rights, issued the stock, and they should be compelled to replace the stocks and compensate the defendant and his friends for the loss. Whatever may be the statement of the parties, the court cannot shut its eyes to the fact that these facts are true. Now, with this direct fair road that those suits on these facts presented to compel the officers of the plaintiff’s company to respond for their improper acts, the defendant and his friends chose their own course with them.

The directors charged thus, finding that the only relief they had was in making a settlement with the plaintiffs in those suits, started to make it, and here the wrong exists; those suits in apparent good faith, and which the parties in interest with the present defendant, professing to do what they did for the benefit of plaintiff, and using the process of the court for that purpose, and by which they could and should have compelled a proper settlement with plaintiff, did not do so. Nothwithstanding the fact that the -wrong to plaintiff was apparent, the real object of the suits by defendant’s friends was attained by a settlement, taking the money out of the plaintiff to settle an alleged fraud of the directors, and it is now before the court to say whether the courts of this country will consent to set their seal of approval on such acts. If these are the facts, it seems to me it is high time to have the courts take a stand and condemn such transactions with trust funds and hold all parties to a rigid account.

It is not a question what right the defendant or his associates had against unfaithful agents, but what is just to the stockholders, who are bound to rely on the trustees for justice, and what duty was cast on the defendant and his associates when dealing with these trustees, and, as has been said by high authority, whilst technical rules may be used to preserve lights, the court should never be astute to find rules or enforce technical rules which will permit a wrong.

The first point taken by the defendant is, that no privity or relation existed between the parties out of which any debt or obligation arose. In the abstract, perhaps, this might be so, but it is hardly an answer to shield a defendant who has (if I am right-in the facts) the plaintiff’s money in his hands, taken with full knowledge from a trustee for the debt of such trustee. Suppose these trustees had, without any regard to an existing -contract or right, paid voluntarily the plaintiff’s money to the defendant, would the point made avail them ? I think not. The redress asked here on the facts arises in something not depending on any contract or privity; in addition, tbe mere fact that tbe defendant dealt with tbe trustees individually is no answer.

If, through all the facts, it appears that, no matter what tbe form used was, tbe plaintiff’s money was used with defendant’s knowledge to settle private stock dealings between tbe so-called third parties and defendant, be is liable.

Tbe defendant’s counsel boldly takes tbe ground — and it seems necessary to sustain it in this case to relieve defendant — that, conceding the dealing to be directly with tbe company, no recovery can be had, because tbe plaintiff is m pa/ri delicio. I should be sorry to think that tbe law in this country was in such a condition, that when trustees used tbe name of a corporation, and bad dealt in that name with tbe knowledge of those they are dealing with, for their own benefit, their wrongful act could be upheld, merely because they used their cestui g%ie trusts name to commit a fraud. I am not prepared to discuss such a question. It is, in my judgment, clear that the law presents no such case for the worst of wrongs. It is no answer to say that the company had the right to purchase its own stocks, or to retire a spurious issue; no such issue is set up by any answer, and none is pretended on the pleadings. The case is one where the defendant should be discharged altogether, or should be held to have taken the corporation’s money without r'ight. It was no settlement with the company, no purchase of its own stock by the company, or to retire a spurious issue; all parties to that settlement evidently understood it was to settle a contest between the defendant and directors of a corporation who had been declared, as the suits stated, delinquent to their trusts, and to enable them to return to the State from which defendant and his associates’ acts had driven them. It would be monstrous to call it a settlement with the company. The defendant contends that the litigations settled by the compromise were really ruinous to the plaintiff, and their settlement was a relief to them. The fallacy of this is shown, when the situation at the time of settlement and the result of that settlement are considered. The pretense in the suit was the present plaintiff’s benefit, and the compelling of the trustees to replace the stock so improperly issued; in fact to buy back from the defendant the stock so issued. The result of the settlement was to throw on the plaintiff the loss of the acts claimed by the present defendant to be fraudulent, and in fact to take the present plaintiff’s money to pay the loss which the fraud the present defendant pretended, in these suits, they were desirous of putting- on the trustees. The pretense that these suits were not the acts of the present defendant, is negatived by the fact that when Drew made his peace in these suits, the settlement was with the present defendant, and when he received the money the suits were ended. The defendant and his ■friends, when these suits were brought, had the right, established in the New Haven Railroad cases, to hold this company for the loss they had sustained by the improper issue of its stock, which would leave the present plaintiff a right of action against its agents; or the defendant had the right to do as he pretended to do here: take steps to compel the trustees to return to the company the fraudulent stock and make the damage good ; and attempts to do this would be applauded; but no right existed to use the process of the court to this apparent end, when his own end was obtained, by taking the trust funds to settle his claims. It is evident that the suits were used .only to press the former defendants into a settlement with trust funds, and the pretense of doing justice to the present plaintiff was ended when the defendant had pressed the trustees into a settlement with himself.

It seems to me, whichever way the case is turned, the same result presents itself, and, unless courts are prepared to let trust property be sacrificed to the frauds of,its trustees, the defendant here must be held. It is said, by one of the counsel for the defendant, that the charge of fraud wholly fails. If in this case the facts here do not present in law such a case as will entitle the plaintiff to redress, I am mistaken. The evidence of Mr. Drew alone shows by what mode the suits which the defendant controlled were used, and did, in fact, compel the settlement, and how the trustees made their peace, and how they discharged their obligations by using the funds of the company to settle the claim; it may present no merits to the counsel, but it does to me.

It is unnecessary to discuss here to what extent a recovery can be had; it is only necessary to establish the use, with the knowledge of defendant, of any of plaintiff’s funds, to hold him; the extent is for the court below, where the case is tried.

The claim that the transaction has been consummated, seems to me to beg the whole question.

The true question presented here in the facts above discussed, is this: What right has a corporation, defrauded by joint acts of its trustees and a third party ?

It is hardly necessary to cite or discuss authorities to show the duties of trustees, or those dealing with them, as to the trust property; the authority cited by plaintiff' fully sustains it, and the result from this is, that all who deal with such trusts must keep themselves ready to .defend their right to money so obtained. The doctrine in the cases cited by plaintiff’s counsel (Story Eq., § 125, C., 1258; Bliss v. Matteson, 22 N. Y.; Perry on Trusts, §§ 825, 855 ; 100 Mass., 382), contain authority on this point, if any were needed, as to what is supposed to be the foundation of law ; that is, to do justice; and I think the cases cited by plaintiff (Perry on Trusts, §§ 211, 272, 823, 828; Bassett v. Noseworthy, 2 Lead. Cas. in Eq., 103, 109), show that receivers of such money can be called on to account, when no new consideration has been parted with.

If I am in error in the facts, of course the conclusions are erroneous, but it seems to me that when the case is digested, there is nothing in it but the use of the process of the court against individuals for wrongs to the plaintiff, and for the alleged purpose of benefiting plaintiff, ending in a settlement that obtains the plaintiff’s money for the very wrong done, not by, but to it, and leaves the plaintiff without redress. To sustain defendant’s view would, it seems to me, on this evidence, lay down the law that trusting stockholders were helpless, and their property beyond the protection of the law. It seems to me that the evidence is clear that the suits, for the settlement of which the money was paid, were settled in fraud of the plaintiff’s rights, arid with their funds, and that such funds should be returned; that there is evidence tending to prove notice to the defendant of the ownership of the funds, or some part of them, and that justice requires the refunding of it. That the findings below on the facts are erroneous.

The j udgment should be reversed and a new trial had.

DaNiels, J.

(dissenting):

The object of this action was to rescind and annul the purchase or redemption of 50,000 shares of the plaintiff’s stock, and the recovery of the consideration paid for the same. It appeared by the evidence, that the defendant and other persons acting with him were engaged in buying the stock of the Erie Railway Company, late in the year 1867, and early in the year 1868, during which period he purchased it to the extent of $10,000,000, par value. The effect of the purchases, as they advanced, was to enhance the market-price of the stock; and during their progress the plaintiff issued $10,000,000 of what were called convertible bonds. These bonds were convertible into the stock of the company, by being surrendered, and the stock, created for that purpose, taken in their place. And when it was understood, by at least one of the directors of the company, that the defendant had given his brokers an unlimited order for the purchase of the stock of the company, $5,000,000 of the amount was placed by such directors upon the stock market for sale. Without knowing that stock of that description had been issued, the defendant’s brokers purchased about 50,000 shares of the plaintiff’s stock, which afterward proved to be made up to a great extent of the stock created by the surrender of the convertible bonds. Actions were thereupon commenced in this court, one in the name of the people by the attorney-general, and three others by persons substantially identified in interest with the defendant, against the Erie Railway Company, its officers and directors, to restrain certain alleged contemplated misconduct of such directors and officers, and to protect the interests of the company, and for other similar relief. The .defendant was not directly concerned in either of the suits, except the one prosecuted by Bloodgood, though the protection of his interests seemed identified with the success of all of them. While the ostensible purpose of the litigation was to protect the interests of the railway company, great reason exists for doubting that to have been the actual object designed to be promoted. The probability is that the suits were all commenced and prosecuted in the interest of those who had purchased the stock of the company and had been subjected to loss by means of the stock placed upon the market, and in great part purchased by them, which resulted from the issue and surrender of the convertible bonds. Other litigation was also engendered in the strife, in which the defendant was made a party as one of the defendants. It is not necessary to refer more fully to these actions, because they are no farther involved in the present controversy than their adjustment and disposition were connected with the transaction out of which this action arose and to a certain extent produced it. The actions brought to restrain the alleged threatened acts of the plaintiff, its officers and directors, were prosecuted through a period of about five months, and during their existence appear to have restrained and embarrassed the operations of the defendants, including the business and financial affairs of the company. For that reason, relief from them was desirable, and to secure that was one of the objects its officers had in view in effecting the arrangement now sought to be annulled. The defendant testified that he had nothing to do with that litigation, but, from the other evidence given upon the trial, there is very good reason for believing that in that respect he was certainly mistaken. His interests were identified with it, and it was carried on by those who had previously acted with him in the stock transactions inducing it, and it was only disposed of, and the company relieved from its effects, after a satisfactory settlement had been made with him. Before that was done the litigation could not 'be controlled or adjusted, but, after that, the difficulty existing in that respect at once disappeared. There can be no doubt, taking all the evidence together, that a satisfactory arrangement and adjustment of the defendant’s claim was in the nature of a condition to the termination and removal of the suits pending against the plaintiff and its directors, and that accordingly will be assumed as an established fact in considering the disposition which should be made of this case.

From the manner in which the Stock, issued for the convertible bonds, was placed upon the stock market and received by his agents, the defendant appears to have claimed, and such was probably the truth, that he had been made the victim of a dishonest expedient, and that the officers of the.company had no right to resort to it for the purpose of causing him to purchase stock which he neither designed to buy nor supposed he was buying. The original object of the defendant and his associates was the purchase of the company’s stock, as it then existed in the market, not the purchase of that which might be issued in consequence of a device resorted to for the purpose of increasing its quantity and correspondingly reducing its value in order to subject them to a loss. He, therefore, was in a position where he had grounds of complaint, which, even according to the moral code of stock operators, might not be wholly without foundation. And that, according to the evidence, was the view taken by himself of the purchases he had made through the success of the expedient resorted to for making him the owner of the newly issued stock. He could, with, a reasonable degree of plausibility, insist that the stock itself was unlawfully issued, and that the artifice through which he was made to purchase it entitled him to redress. And that he did that is clearly manifested by the evidence which was given upon the trial by the witnesses Gould and Eisk. If he was right in those positions, then the company was liable to him for the loss he had sustained by becoming the owner of the convertible bond stock. (Bruff v. Mali, 36 N. Y., 200, and cases cited in opinion.) The claim was substantially made with the determination of maintaining it by such means as might prove advantageous for that purpose, and among them the design seems to have, been included of harassing the company by litigation for the purpose of securing its adjustment. Under those circumstances Drew, the treasurer at that time of the company, at first entered into an arrangement with the defendant for the purchase from him of 50,000 shares of the stock, and for his holding another 50,000 shares for an indefinite period of time. This was apparently made, on the part of Drew, to provide him with the means of' controlling the company until after the next succeeding election, and on the part of the defendant for the purpose of retrieving the losses he had sustained by his purchases. But that arrangement was never carried into effect between the persons who were the parties to it. 'Drew was either unable or disinclined afterward to fulfill his agreement, and consented that Eldridge, the president of the company, and Gould, who was a director and finally succeeded Drew as treasurer, should become the purchasers of the stock instead of himself. And they accordingly entered into, and afterward performed, the agreement which it was the object of this action to rescind. By that agreement the defendant agreed to sell to them 50,000 shares of the Erie Railway Company stock, at seventy cents on the dollar, and they were to pay him $1,000,000 for the losses he had sustained by means of his purchases, and for withholding from sale for four months 50,000 other shares of the plaintiff’s stock; and the suits against the company and its directors were to be adjusted and withdrawn. The agreement made by them for the purchase of the stock contemplated and provided for its sale to them, as distinguished from the company itself, but they, in fact, were acting at the time for the company. And from the evidence which Eisk gave, it would seem to have been so understood by the defendant, although he himself denied the existence of any understanding of that nature. But, under the supposition that the agreement which they made with the defendant would be performed, the’persons in whose names the suits were prosecuted adjusted their claims, and the litigation was brought to an end at once. And then, upon the order of the defendant, 50,000 shares of its stock were delivered to the agents of the plaintiff’s officers, and the consideration for that, and for withholding another 50,000 shares from sale for a period of four months, was paid to the defendant and his agents. This payment was made by the delivery of $1,250,000 in the bonds of the Boston, Hartford and Erie Railroad Company, guaranteed at eighty per cent by the plaintiff, amounting to the sum of $1,000,000, and by checks for cash, amounting in the aggregate to the sum of $3,500,000. The bonds transferred and the money paid were, in fact, the property and money of the plaintiff, and the stock was received for it by its president and treasurer, who were only its nominal purchasers, and it is that money and property which the plaintiff endeavored to recover in this action, after having tendered a return of 50,000 shares of its stock to the defendant. When the tender was made, it was not proposed to restore the litigation, nor to adjust any claim which might arise out of withholding the other 50,000 shares for four months from sale, but in the view which, under the circumstances proved, should be taken of the rights of the parties, no consideration of the effect of that omission will be rendered necessary. It was claimed upon the argument of the appeal, that the arrangement made for the adjustment of the controversy was collusive and fraudulent, and that the corporation had no power to make il. And if it had appeared that the defendant was a party to any fraudulent scheme for misappropriating or misapplying the plaintiff’s property, and had acquired its money and bonds in that way, there would be no ground whatever for doubting its right to maintain this action, upon a complete rescission of the agreement and a restoration of all that had been received under it. But the evidence entirely fails to establish the conclusion that he was complicated in any fraudulent device or expedient of that nature. All that was given in the case relating to his position, showed that he claimed that the stock issued through the means of the convertible bonds, was improperly imposed upon him, and that he was consequently entitled to be relieved from it and compensated for the losses it had occasioned him. The evidence of Gould and Fisk is clear and explicit on that subject, and the court assumed its truth in dismissing the complaint. That was the nature of the demand made by him, and, so far as the litigation against the company was subject to his control, it was maintained for the purpose of enforcing that demand. His position throughout was one of unequivocal hostility, 'rather than of connivance or collusion, and the officers of the company only yielded to it so far as they seemed' to prove incapable of resisting it. Each party acted independently, and conceded only what there was no prospect of successfully withholding.

The argument that the company had no authority to enter into or perform the agreement which was made, seems equally incapable of being sustained. For what was done, was clearly distinguishable from dealing in and purchasing its own stock. The claim, in substance, which was made, was that the stock that was the object of the arrangement, had been collusively and unlawfully issued for the purpose, by increasing the supply, of defrauding those who, at the time, were engaged in buying it, and that the obligations of the company concerning it were of ah exceptional character, on account of those circumstances. The defendant insisted that he should be relieved of the stock, and compensated for his losses incurred by purchasing it, substantially for those reasons. And that claim was persistently urged and maintained through, all the negotiations which were had for the adjustment of the controversy. If the claim should prove to be well founded, the company was probably liable to make the defendant good. And, if that was the case, it could do so by compromise as well as by the result of a suit. For, where an apparent liability is asserted against a corporation, it must have the same power as an individual to adjust and settle it, without first subjecting itself to the trouble and expense of litigation before it can be at liberty to act in such a manner as its interests may require. Whether the circumstances attending the issuing and sale of the stock were such as to create a liability, was a question which addressed itself directly to those to whose charge the interests of the plaintiff had, for the time being, been committed. And they appear to have given it sufficient consideration and reflection to convince them that the company was liable. For, after procuring the opinion of reliable counsel, as to the legality of the step which was contemplated, it was sanctioned and approved by the board of directors, and then carried into execution. This action of theirs constituted a substantial concession that the adjustment proposed by the defendant was not only lawful, but, beyond that,, a proper and expedient mode of settling the existing controversy. And the power of the corporation to make it, certainly seems to be reasonably free from substantial doubt. A material part of the business of its board of- directors must have consisted in the consideration of claims made upon the company, and the expediency of settling them without legal proceedings. After full examination and reflection, aided by the advice of eminent counsel, and a' decision finally made and consummated by a settlement, it must be too late to gainsay what was done, as long as no mistake or misrepresentation can be shown to have induced the adjustment made. The directors and officers of the company acted with full and complete knowledge of the claim made, the circumstances relied upon to Sustain it, and of all that affected the propriety of its allowance and settlement; and, after doing that, concluded that an acceptance of the defendant’s terms was the best alternative for adoption, and satisfied his demands.

Their action in that respect was within the province of their authority, and the courts can do nothing less than to sustain it, for the law favors the amicable adjustment of controversies; and when they are fairly made in good faith, and not induced by artifice, mistake or fraud, its policy is to consider all further controversy upon the subject closed. This rule is very well settled. (Russell v. Cook, 3 Hill, 504; Stewart v. Ahrenfeldt, 4 Denio, 189; Farmers’ Bank of Amsterdam v. Blair, 44 Barb., 641; Adams v. Sage, 28 N. Y., 103; Vosburgh v. Teator, 32 id., 561; Lucy’s Case; In re Midland Railway Co., 4 De Gex, McN. & G., 356; Palmer v. North, 35 Barb., 282; Cook v. Wright, 101 Eng. Com. Law. 559; Nelson v. Inhabitants of Milford, 7 Pick., 18; Home Ins. Co. v. Northwestern Packet Co., 32 Iowa, 224; Augusta v. Leadbetter, 16 Maine, 47.) And no good reason exists which would justify the omission to apply it to this case. Under the most favorable view which can be taken of the facts for the plaintiff, the judgment which was directed at the trial was right, and it should therefore be affirmed, with costs.

LawreNoe, J-, concurred in opinion of DoNOhue, J.

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


author: DANIELS, J.:

text:
    ADELINE H. DOUGLAS, Respondent, v. GEORGE W. DOUGLAS, Appellant.

      Decree for maintenance— incident to one for sepm'ation — CM'awmstances und&i' which it is granted — Statutory construction — Interlocutory dearec — reviewed ly motion for nm trial, when.

    Under section 54, 2 Revised Statutes, 147, a decree for maintenance can only be made as an incident to one for separation.
    Tlie circumstances under which a decree for maintenance may be made, must be of such a nature as would, in themselves, justify a direction of a separation. But, under such circumstances, a decree for separate maiutenance may be made even though a decree of separation may not be.
    ■When a law antecedently to the revision of the statutes is settled, either by clear expressions in the statutes or adjudications on them, the mere change in phraseology'shall not be deemed a change of the law unless such phraseology evidently purport an intention in the legislature to work a change.
    A decree for maintenance which directs that, the amount to be allowed for support be ascertained by a reference, which is therein ordered for such purpose, should he reviewed at the General Term by a motion for a new trial and not by appeal. In cases where the defect has been waived, the court, at General Term, will order that the party seeking a review stipulate to withdraw the notice of appeal, and substitute a notice of motion for a new trial, and pay the costs of the appeal, or else that the appeal be dismissed, with costs.

      Appeal from a judgment decreeing maintenance of the plaintiff by the defendant but denying a separation, entered at Special Term, in an action brought by a 'wife against her husband for a separation.

      E. G. Benedict and John K. Porter, for the appellant.
    The only causes fo2' separation from bed and board forever or for a limited time, are those provided in the statute: 1. “ The cruel and inhuman treatment by the husband of hiá wife.” 2. “ Such conduct on the part of the husband toward his wife as may render it unsafe and improper for her to cohabit with him.” 3. “ The abandonment of .the wife by the husband, or his refusal or neglect to provide for her.” (2 R. S., 146, §§ 50, 51; Atwater v. Atwater, 53 Barb., 623, 625, opinion 'by Lott, J.; Pmis v. Davis,-1 Hun, 444, opinion by Taloott, J.) The non-existence of all these causes is found and decided by the court without any exception or appeal on the part of the plaintiff. The issues having been decided in favor of the defendant, that is to say, the court having adjudged, without exception or appeal that the plaintiff' never had a cause of action, it was erroneous to award to her the relief she demanded. (Atxoater v. Atwater, supra; 53 Barb., 621; Doris v. Davis, 1 Hun, 444.) Intemperance is not a cause of separation or separate maintenance, any more than other improper habits or vices, such as Sabbath breaking or profanity. (Mason v. Mason, 1 Edw., 278, 284, 292; affirmed on appeal by 'Walwoeth, Oh.; note in Edw.)

      Wm. G. Barrett, for the respondent.
    The appeal is premature, as the decree provides for a reference before a final decree should be entered. [Lawrence v. Farmers’ L. and T. Go., 15 How., 57; D’lvernois y.'Leavitt, 8 Abb., 59; McMahon v. Allen, 7 id., 1; The People v. Haws, 34 Barb., 69; Griffin v. Grcmston, 5 Bosw., 658 ; The People v. Haws, 34 Barb., 80 ; 2 R. S., eh. 8, part 2, art. 4, tit. 1, § 55 [Edm. ed., 153].) It is equally clear that the court may order a reference to take proofs bearing upon this question. (Code, § 271, sub. 3.) And this is the only question which by any possibility can be heard upon this appeal. (Lawrence v. Farmers’ L. and T. Go., 15 How., 62.) Doubtless, the principal question to be argued on this appeal is whether, conceding that the plaintiff was justified in leaving her husband’s house, by reason of his conduct— conduct not amounting, however, to that technical “cruel and inhuman treatment,” which is a ground of divorce — she is entitled to maintenance. In 1787, the legislature conferred upon the Court of Chancery the power to grant divorces for adultery. This act was substantially re-enacted in the revision of 1813, and the additional power was given to the court to make, in specified cases, a decree of separation from bed and board. (2 R. L. of 1813, p. 200, §§ 11, 13.) It is not permitted to interpret what has no need of interpretation. (.People v. N. Y. G. R. R. Go., 13 N. Y., 80; Dresser v. Broolcs, 3 Barb., 29.) The general system of legislation upon the subject-matter of a statute may be taken into view in order to aid the construction of a particular statute relating to the same subject. {Fort v. Burch, 6 Barb., 74; 1 Pick., 248, 254; 10 id., 241; Sedg. on Con. Stat. Laws, 195, 196, 206, 207, 208, 219, 220; jP. v. P., 24 ELow. Pr., 197.) The case of Atwater v. Atwater (53 Barb., 621), was decided upon the foregoing case, and the case of Tu/rrel v. Turret, (2 Johns. Ch., 391), hereafter referred to. If the acts complained of would not furnish ground for a divorce a mensa et thoro, the court, in its discretion, may exercise its equitable jurisdiction under the statute, and decree a proper maintenance and support. {Chaffer v. Chaffer, 15 Mich., 184; Stat. of Mich. [2 compiled laws], p. 1472; Nicel/y v. Nicely, 3 Head’s [Tenn.], 184; Ohandler v. Glumdler, 13 Ind., 492.)
   DANIELS, J.:

The court found neither of the facts proved in this case, for which alone a judgment for a separation could be directed according to the provisions of the statute of this State. (3 R. S. [5th ed.], 237, § 64.) But it was found that the husband was a person of intemperate habits, and for that reason he was adjudged liable to provide for the support and maintenance of his wife, out of his property. This,circumstance was insufficient, under the statute just referred to, for the purpose of justifying a judgment for a separation in the plaintiff’s favor, and it was so considered by the learned judge before whom the cause was tried. But the judgment which he directed was deemed by him to be justified by the section of the statute providing that: “Although a decree for separation from bed and board be not made, the court may make such order or decree for the support and maintenance of the wife and her children, or any of them, by the husband, or out of his property, as the nature of the case renders suitable and proper.” (3 R. S. [5th ed.] 238, § 68.)

A similar provision was contained in the statute of this State, previously existing upon this subject, but it was then combined with another which declared and defined the causes for which separations between husband and wife could be decreed. And it in terms provided that the right to support and maintenance on the part of the wife should depend upon the charge in the bill appearing to be true. Where that was made to appear by the evidence, an order or decree for the suitable support and maintenance of the wife could be directed, whether a separation was, or was not decreed. (2- R. L., 200, § 11.) And it could not be done unless the cause for which, according to the terms of the statute, a separation could be decreed, was established by the evidence. (Turrel v. Turrel, 2 Johns. Ch., 391.)

By the change made in the revision of the statutes, the terms rendering the right to support and maintenance expressly dependent on the truth of the charge contained in the bill, was omitted, but the causes for which a separation may be adjudged, were as clearly expressed as they previously had been. It was provided that a separation between husband and wife can be decreed only for certain enumerated causes, and when that is adjudged, then a decree for the support and maintenance of the wife and her children, out of the husband’s property, may also be made. (3 R. S. [5th ed.], 231, § 64; 238, § 64.) Under the latter section the decree for maintenance can only be made as an incident to one for a separation. The right is rendered wholly dependent on that circumstance; and then, follows the section already quoted, which confers the power to decree a separate maintenance out of the.husband’s property, although a decree for a separation may not be made. The facts which should be made to appear, in order to justify the making of such a decree, are not mentioned in this section. But it cannot reasonably be assumed that a mere arbitrary authority for that purpose was intended to be created by the legislature. If it were, the courts for all imaginable causes could decree a separate maintenance of the wife by the husband, whenever, as .a mere matter of discretion, that might be deemed proper. An authority of that nature over the marital rights of par ties,, should be clearly created before its existence can be presumed. It could not have been the intention of the legislature to confer it by means of this provision, although it has been left without any express qualification or restriction. The section itself is part of a system providing for and governing actions for separation between husbands and wives, and it should be construed so as to render it harmonious with the general scheme provided for. That has given the courts the power to interfere only for certain defined and specified causes, and they must be of such a nature as would, in themselves, justify the direction of a separation. If no such cause can be shown, then the courts under these provisions are without authority over the parties. But if one or more of them are established by proof, then a separation, with a decree for the maintenance of the wife and her children, may be made in her favor. And the further power has been conferred, of making the provision for her separate maintenance, even though a decree for separation may not be made. But it has not authorized the decree for a separate maintenance when the cause which might justify a separation has not been proved. It is oiily after it has been established, and the separation itself for some reason denied, that the power has been given to award a separate maintenance. Although in the prescribed cases one may be withheld, that, in and of itself, will not necessarily deprive the wife of the other.

This restriction'of section 68 is required by the circumstance that the redress provided for is entirely statutory in its character, and the causes for which the courts may interfere are clearly declared. For such causes, or at least one of them, and for nothing else, the statute has provided the relief which may be decreed. It is only for them that the action can be maintained at all, and consequently it could not have been intended that a failure in the foundation of the case could be attended with success as an incidental result of it. This statute was a revision of that preceding it, which, in plain words, required the case to be proved, before a separate maintenance, without a separation in fact, could be decreed. In this respect, certainly, no reason existed for suggesting a change, and none can be supposed to have been intended by the unimportant omission observed in making the revision. The rule on this subject is well established, that “ where a law antecedently to a revision of the statutes is settled, either by clear expressions in the statutes or adjudications on them, the mere change of phraseology shall not be deemed a change of the law, unless such phraseology evidently purport an intention in the legislature to work a change.” (Sedg. on Stat. and Const. Law, 428, 429, and cases referred to.) There was -no propriety in changing the preceding law in this respect, and none can be properly inferred from the changes which were made. The reasonable construction of the statute, when its provisions are all considered together, is, that it was only intended to provide redress when some one of the causes rendering it proper could be shown from the evidence given to exist. It is required by the general scope and purposes of the statute, and is well sustained by adjudicated cases. (P. v. P., 24 How. Pr., 197; Atwater v. Atwater, 53 Barb., 621; Davis v. Davis, 8 S. C. [1 Hun], 444.) If the defendant has become an habitual drunkard, and for that reason in danger of squandering his property, a different mode of proceeding has been provided for the protection of the plaintiff against the consequences of that misfortune. It cannot be done in an action like the one now before the court.

The plaintiff objects that the appeal has been prematurely taken, because the judgment ordered provided for a reference to ascertain the amount which should be allowed for her support. Until that has been done, the judgment cannot be final, and for that reason it was not the proper subject of an appeal. The direction was not an order rendered appealable by section 349 of the Code. It was a judgment, though not final in its character, and was a proper subject for review by the General Term, by way of a motion for a new trial, under section 268 of the Code. The necessary exceptions for that purpose appear in the case, and the only defect in the practice followed, was in giving notice of an appeal, instead of notice of a motion for a new trial.

A notice of appeal was improper; all that was required beyond the case and the exceptions to the decision as they have been made, was the service of a notice of a motion for a new trial. Precisely what has been done, was provided for by the section referred to, except that the case should not have been brought before the court as an appeal, but as a motion for a new trial. In that form the General Term has complete jurisdiction to" review the decision complained of by the defendant. If a formal motion had been made at the General Term to dismiss the appeal, leave could have been given the defendant, on terms, to correct his practice by changing the notice of appeal to that of a motion for a new trial. (Code, § 114.) It is not yet too late to allow that to be done. There will be no propriety in dismissing the appeal, when all the defendant can be required-to do to bring the case again on for a hearing, will be to serve notice of a motion for a new trial. The practice can be corrected and the case finally disposed of at this time, by an order directing that the application made on the argument for the dismissal of the appeal, be granted with costs, unless the defendant within twenty days pay the costs of the appeal, and stipulate to withdraw the notice of appeal, and serve in its place a notice of motion for a new trial. And, upon that being done, so much of the direction as provides for the recovery, by the plaintiff, of her support and maintenance out of the defendant’s property, and directs a reference' to ascertain its amount, should be set aside and a new trial ordered.

Davis, P. J., and DoNoi-iue, J., concurred.

Ordered accordingly.


author: LaweeNoe, J.:

text:
    In the Matter of the Opening of THE KINGSBRIDGE ROAD.

      Assessment — not set aside if the principle on which it is made is not erroneous— Appeal from — what consuLen'ed on.

    The court will not interfere merely on the ground that an assessment appears to he larger than it should have been, if no error appears to have been made in the principle upon which it was laid.
    An appeal from an order of the Special Term confirming the report of commissioners of estimate and assessment, brings up for review only those questions which were discussed below.

      Appeal from an order confirming the report of the commissioners of estimate and assessment herein, made in an application of the department of public parks, for and in behalf of the major, aider-men and commonalty of the city of New York, relative to the opening of Kingsbridge road northerly, from the southerly line of One Hundred and Fifty-fifth street to the Harlem river. It was claimed by the appellant, among other things, that the Supreme Court did not acquire jurisdiction to appoint commissioners of estimate and assessment, on account of the failure of the Central park commissioners to locate the said road, and to file maps showing such location, as required by chapter 565 of the Laws of 1865. It was also urged that the Central park commissioners had no power, under chapter 565 of 1865, to widen or straighten Kingsbridge road, power only being given them to lay out new roads, etc. The objections filed with the commissioners of estimate and assessment stated that the assessment made on the property in question was greater than the benefit arising to the same by reason of the opening of the Kingsbridge road.

      James A. Deering, for the appellant.

      James G. Oa/rter, for the respondent.

       See 4 Hun, 599. —[Rep.

   LaweeNoe, J.:

The order below should be affirmed:

First. The objections which were taken by the appellant Lynch before the commissioners, relate solely to the amount of the assessment imposed upon his property. I can discover no error in the principle upon which the commissioners acted in making the assessment. The court will not interfere merely on the ground that an assessment appears to be larger than it should have been. The determination of the commissioners on the question of value is conclusive. (Matter of William and Anthony Streets, 19 Wend., 679.)

Second. I do not regard the alleged jurisdictional objections which are urged by the appellant as well founded. As respects the failure to file the maps, it seems sufficient to say that the defect, if any, was remedied by the act of 1874, chapter 329.

Third. The commissioners of the Central park, as the successors of the commissioners named in the act of 1860, had power to widen and straighten the Kingsbridge road. (Laws, of 1860, p. 337; Laws of 1865, p. 1143.)

Fourth. It seems to me to be a conclusive answer to the other objections urged by the appellants’ counsel, to say that none of them can be considered on this appeal. The present appeal brings up for review only those questions which were discussed below. (Matter of Comrs. of Cent. Park, 50 N. Y., 493.)

There is nothing on the face of the papers to show that any questions were discussed below, other than those arising upon the objections filed with the commissioners.

The order below should be affirmed, with ten dollars costs and disbursements.

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

Proceedings affirmed, with ten dollars costs, besides disbursements. •


author: Donohue, J.

text:
    MARTIN W. BRETT and others, Respondents, v. THE FIRST UNIVERSALIST SOCIETY OF BROOKLYN, Appellant.
    All the parties entitled to shares in one debt are properly joined as parties plaintiff in an action brought for its recovery.
    Appeal from a judgment entered on tbe report of a referee, in an action brought by the Bretts (plaintiffs), as assignees of a part of a claim held by Caleb Barslow against” defendants, and Carhart (plaintiff), who held an assignment of the’balance of the claim.

      Smith & Woodward, for appellant. Wm. P. Richardson, for respondents.
   Opinion by

Donohue, J.

Davis, F. J., and Daniels, J., concurred.

Judgment affirmed.


author: DoNohue, J.

text:
    WILLIAM B. DINSMORE and others v. ALVIN ADAMS and others.
    • Appeal from an order of the Special Term, setting aside a judgment as against certain of the defendants herein'.
    The objection was taken, among others, that more than one year . had elapsed, and that the court had no power to open the judgment. To which the court say: “There are powers above and'beyond the Code that this court possesses, and it seems to me that in a proper case the court of equity possesses an undoubted right to give the relief asked.”

      John JE. Bxirrill, for appellants. W. W. McFa/rland and Wm. D. Shipman, for respondents Phillips and others.
   Opinion by

DoNohue, J.

Davis, P. J., and DaNiels, J., concurred.

Order affirmed, with ten dollars costs, besides disbursements.