text:
    BARKER PLACE, as Executor, &c., Respondent, v. JEDEDIAH K. HAYWARD, Appellant.

      Decided December 1, 1884

      Costs—payment by execution in person.—Res adjudicata—when party muy not enter fidgment for costs against plaintiff personally, motion to charge plaintiff personally therewith having been denied.

    Before Sedgwick, Ch. J., and Van Vorst, J.
    Appeal by defendant from an order vacating a judgment, that plaintiff personally pay the costs of the action.
    The court at General Term said :—lf The court below vacated the judgment, for the reason that it directed that plaintiff personally pay the costs of the action.
    “ Apart from an order of the court, the only justification for such a provision in the judgment would be that the referee, if he possessed such power, had directed that such a judgment be entered. The referee had not made such a direction. The appellant, before entering the judgment that was afterwards vacated, made a motion that the defendant be allowed the costs against the plaintiff personally. This was denied, and upon appellant’s appeal from it, the general term affirmed the order of denial. This was an adjudication in the action that the defendant was not entitled to the provision in question. He was bound by it, and could not enter a judgment to the contrary of it. This would be correct if the referee had directed judgment for the defendant, as to costs against the plaintiff personally. For, he voluntarily would have submitted the question for re-adjudication and this would control his action.
    If. the special term, in denying the motion, acted upon an imperfect state of facts, the remedy would be to ask the special term to grant, in its discretion, a re-argument upon the facts fully stated.

      J. K. Hayward, appellant, in person.

      Charles F. Wells, for respondent.
   Opinion by Sedgwick, Ch. J. ; Van Vorst, J., concurred.

Order affirmed, with $10 costs, and disbursements to be taxed.


source: Caselaw Access Project

license: Public Domain

text:
    MERRILL HUSSEY, Appellant, v. THE METROPOLITAN EXHIBITION CO., Respondent.

      Decided December 1, 1884.

      Contract granting sole and exclusive rights—construction of.

    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal from judgment dismissing the complaint entered upon the direction of the trial judge.
    Action by the appellant against the respondent company upon an instrument in writing, the principal clause of which was as follows : The respondent by “these presents doth grant and assign unto the said party of the second part (the appellant) the sole and exclusive right and license to sell and vend wines, liquors, beer, cigars and all other refreshments of what nature or kind soever upon the premises known as the Polo Grounds, situate at One Hundred and Tenth street, in the city and county of Hew York, for the term of nine months, to wit: from the thirty-first day of May, one thousand eight hundred and eighty-three, to the thirty-first day of December, one thousand eight hundred and eighty-three, and to use, enjoy and have possession of the bar under the grand stand upon said grounds, together with the fixtures and furniture now therein, and of a temporary structure or bar, to be hereafter erected by the party of the first part upon the western portion of the said grounds, to be used by the American Association Clubs, for the purpose of selling and vending as aforesaid.”
    The court at General Term said : “ We are of the opinion that the complaint of the plaintiff was properly dismissed. Our construction of the agreement between the plaintiff and defendant is in harmony with that given to it, by the learned judge upon the trial. Such construction is that the sole right, to the exclusion of others, was granted to the plaintiff to sell and vend wine and beer upon the premises known as the Polo Grounds, but that the exercise of the right to vend was limited to the bar under _the grand stand, and to the structure or bar to be erected upon the western bank of the grounds. Such construction, we apprehend, does not violate, but is in accord with the rules of construction which the counsel for the appellant has carefully cited. In this view the prohibition from selling liquor on the grand stand, the breach complained of, was not a violation of the agreement, and gave the plaintiff no ground of complaint. The parties themselves seem to have understood the agreement. For, notwithstanding the prohibition to sell upon the grand stand, the plaintiff paid his rent monthly without objection, except the rent of the last month, whereas had he supposed that he had any ground of complaint, he could have insisted under the agreement, upon a deduction of rent from time to time.

      Robert Jackson, for appellant.

      George F. Duysters, for respondent.
   Opinion by Van Vorst, J. ; Sedgwick, Ch. J., and Freedman, J., concurred.

Judgment affirmed, with costs.


author: Van Vorst, J. Sedgwick, Ch. J., and Freedman, J.,

text:
    MATTHEW WHITE, Appellant, v. JAMES RINTOUL, Respondent.

      Decided December 1, 1884.

      Undertaking.—Fidelity and, Casualty Co.

    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal from an order overruling plaintiff’s objections to defendant’s motion for the approval and acceptance of the undertaking and guaranty given on defendant’s appeal from judgment herein, and granting said motion, and accepting said undertaking and guaranty.
   Van Vorst, J.

The competency of the Fidelity and Casualty Company of New York, to guarantee undertakings required or permitted by law, has been already passed upon by the supreme court at general term, in the first and second departments, which have formulated rules upon the subject (Matter of Filer, 11 Abb. N. C. 107, and cases cited in note).

The sufficiency and legality of a guarantee by such company, and its binding force has been heretofore sanctioned by this court, as it has been by the surrogate and city court. The rules of the supreme court were founded upon an examination as to the status and powers of this corporation under the statute. Our examination of the subject does not lead us to a conclusion in opposition to that reached by the supreme court. Some objection is made to the regularity of the organization of this corporation. That subject has been already passed upon. But in no event could the corporation set up a defective organization against the claim of the plaintiff upon the guaranty which it has made to him. We see nothing in the other objection taken, to lead us to interfere with the order approving the undertaking and guaranty. The justification was sufficient.

Arthur R. JRohertson, for appellant.

Moore, Lowe & Sandford, for respondent.

Sedgwick, Ch. J., and Freedman, J.,

concurred on the ground that the company’s justification in this case was sufficient.

Order appealed from affirmed, with costs and disbursements of the appeal.


text:
    WILLIAM GRUPE, Appellant, v. JOHN BRADY, Respondent.

      Decided December 1, 1884.

      Motion for new trial at special term—when not granted.

    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ..
    Appeal from order made at special term, denying' plaintiff’s motion for a new trial.
    The action was brought to recover a sum of money which the plaintiff alleged he had loaned to the defendant, upon the latter’s promise to repay the same on or before a certain day. Upon the trial of the issues, the jury rendered a verdict for the defendant. The plaintiff moved for a new trial on the minutes on all the grounds mentioned in section 999 of the Code of Civil Procedure, which motion was denied. Plaintiff excepted to the denial, but no order was entered upon said motion. Subsequently a case and exceptions were made and settled, and upon them, as well as upon affidavits, the plaintiff moved at special term for a new trial. The motion was made on tire ground of surprise and newly discovered evidence, as well as upon the case and exceptions. The defendant interposed an affidavit in opposition to the -motion. An order was made and entered denying the motion, and the present appeal is from the last named order.
    The court at General Term said :—“Passing over the objections of the respondent which are of a somewhat ■technical character, I think the motion was properly denied upon the merits. The exceptions were all untenable. The evidence claimed to have surprised the plaintiff was principally brought out by defendant’s counsel on the cross-examination of the plaintiff and of plaintiff’s witness. Towards the close of the case, plaintiff’s counsel introduced evidence in rebuttal, but in doing so, he did not in any way indicate that he was taken by surprise, nor did he move for the withdrawal of a juror, or the postponement of the trial for such reason. As to the alleged newly discovered evidence, it clearly appeared that it was cumulative, and that, with due diligence, it could have been readily procured for the trial.”

      Hyland & Zabriskie, for appellant.

      H. Judson Morris and Wm. King Hall, for respondent.
   Opinion by Freedman, J.; Sedgwick, Ch. J., and Van Vorst, J., concurred.

Order affirmed, with costs.


text:
    EDWARD RALPH, Respondent, v. JOSEPH HUSSON, Appellant.

      Decided December 1, 1884.

      Security for costs on ground of non-residence.—Motion to compel verification. of complaint.

    Before Sedgwick, Ch. J., and Freedman, J.
    Appeal from order denying defendant’s motion to compel plaintiff to verify his complaint, and to compel him to give security for costs, as a non-resident.
    The court at General Term, said :—“In so far as the motion that the plaintiff be compelled to file security fox-costs, is based upon the claim that the plaintiff does not inside in the city and county of New Yox-k, but is a i-esident of Kings county, it was properly denied under the decision of this court in Lewis v. Farrell (46 Super. Ct. 358). And in so far as it is based upon the allegation that the note in suit was transferred to the plaintiff by the administrators of an insolvent estate after the maturity thereof, it was also properly denied, for that fact constitutes no ground. Upon the other bx-anch of the motion, viz., that the plaintiff be compelled to verify his complaint, the defendant has mistaken his remedy. If the verification which appears to have been annexed is really defective as claimed, the defendant may treat it as a nullity (§ 528).

      Denis McMahon, for appellant.

      Abram Kling, for respondent.
   Opinion by Freedman, J. ; Sedgwick, Ch. J., concurred.

Order affirmed, with costs.


text:
    MARY NEYER, Respondent, v. JOHN F. MILLER, Appellant.

      Decided December 1, 1884.

      Wegligence case—hall mat.

    Before Sedgwick, Ch. J., and Freedman, J.
    Appeal from judgment in favor of plaintiff, entered upon the verdict of a jury, and from order denying defendant’s motion upon the judge’s minutes for a new trial.
    This action was brought to recover damages for an injury to plaintiff, occasioned by the negligence of defendant, or his servants. The plaintiff was an occupant of one of the apartments in an apartment house situated in Seventh street, New York, owned and managed by defendant. She was a member of the family of her son-in-law, a tenant in the building. Upon the entrance hallway, used in common by all the tenants of the building, was a hempen mat, extending nearly the whole length of such hallway, about twenty-six feet. This was suffered to become dangerous, and a large hole, near the stairway in the rear of the hall, was allowed to remain unrepaired for many weeks, and after repeated notices given to the janitor in charge of the building. The plaintiff, in passing along this mat, caught her foot in the hole and fell. She struck her forehead, and by the blow lost the sight permanently of one eye.
    The action was tried before Mr. Justice Ingraham and a jury, May 23, 1884. A verdict was rendered in favor of plaintiff for $2,500.
    The court at General Term, said : “The exceptions taken by the defendant are all untenable. The questions relating to defendant’s negligence and plaintiff’s contributory negligence were, under the peculiar circumstances of the case, questions of fact for the jury, and they were fairly left to the jury under a charge which fully guarded all the rights the defendant had, and to which no exception was taken. Upon a careful review of tho whole case, no reason appears why the verdict should be disturbed.

      Martin & Smith, and A. P. Whitehead, for appellant.

      Matthews, Rapallo & Smith, for respondent.
   Opinion by Freedman, J. ; Sedgwick, Ch. J., concurred.

Judgment and order affirmed, with costs.


author: Per Curiam.

text:
    ELIAS M. GREGORY, Respondent, v. ARNET SEAMAN et al., Respondents.

      Decided December 1, 1884.

      Order of reference—attorney and client, accounts between—distinction between attorney and counsel in that regard—when account between attorney and client referable.

    Before Sedgwick, Ch. J., and Van Vorst, J.
    Appeal by defendant from an order referring the issues for trial.
    This action was upon an attorney’s bill, transferred to plaintiff by one S. F. Gregory, and the bill was annexed to the complaint and embraced numerous items for services and disbursements in seventeen separate suits and proceedings, to each of which items a separate value was affixed. The motion was made and granted on the pleadings and the affidavit annexed to the notice of motion. There were no affidavits or papers presented or used on the hearing by the defendants. Plaintiff’s affidavit stated * ‘ that the trial of the issues herein will necessarily require the examination and statement of long and complicated accounts on the side of the plaintiff, and a long account on the side of the defendants, consisting of items and charges of many and various dates and of many different and distinct transactions. That the bill of the plaintiff is for services in eighteen separate and distinct suits, proceedings and transactions not connected with each other in any manner, and the items in each of which proceedings, will number from fifteen to fifty. ”
    The defendants’ answer admits that Gregory was retained by them in eleven of the cases, which it enumerates ; that he performed some services in each of such cases for the defendants, and then denies each other allegation in the complaint, and denies the value of the services claimed. It then proceeds :
    “Third defense.-—That the said Samuel F. Gregory, so far as he performed any services for said defendants as their attorney in said cases, did the same so carelessly, and devoted so little attention and care to the said cases and to the proceedings therein, that the said defendants lost or failed to collect all of the said claims involved in said suits which were due and owing to them, except some small amounts, and that in consequence of such negligence and want of proper care on the part of the said Samuel F. Gregory these defendants suffered damages to the amount of at least fifteen hundred dollars. Fourth defense.—That said Samuel F. Gregory, while he was so acting for said defendants as their attorney, collected for them, as these defendants have been informed and believe, divers sums of money, the amounts of which and the persons from whom collected these defendants are now unable to state. That said Samuel F. Gregory asked leave from these defendants to retain and apply some of such collections on account of his services, which request was acceded to by these defendants, and which amounts these defendants pray, when ascertained, may be applied on account of anything that may be found due to the said Samuel F. Gregory. Fifth defense.—That these defendants, since they so retained the said Samuel F. Gregory, have paid him at divers times, on account of his services and disbursements, in the cases in which he was so retained,, about the sum. of $945.70 and upwards, which payments were made by these defendants to him on account of his said services and disbursements, and with the promise on the part of the said Samuel F. Gregory that he would perform the said services properly and with due care and attention. Wherefore the defendants demand judgment in then favor, with costs.” The plaintiff put in a reply to so much of the answer as sets up or constitutes, or seeks to set up or constitute, a counter-claim or offset, in which reply he denied each and every allegation thereof.
    The court at General Term, said :—“An attorney-at-law may have, as matter of fact, a running account with his client. He may deal with his client and his client with him, so that the relation of debtor and creditor will not be grounded solely upon the facts of each service, but will regard a lawful practice of first charging in account the indebtedness and giving a credit appropriate to the expectation that several items of indebtedness may be liquidated from time to time as the account is rendered, or that partial payments be made from time to time. It is a relation somewhat different from that of counsel, who are usually to be paid for each piece of service as a whole. Whether the relations of the parties to the case were of the kind first alluded to, was, under the pleadings and bill of particulars, a question of fact, for the judge below. On this point there is no reason to disturb his decision, and it further follows that in such a case an order to refer is not erroneous. If the trial of the issues presented by the complaint will involve the taking of a long account, they may be referred, although there is a defense of fraud or negligence (Welsh v. Darragh, 52 N. Y. 590).”

      Nelson Smith, for appellant.

      S. F. Gregory, for respondent.
   Opinion

Per Curiam.

Order affirmed, with $10 costs.


text:
    FRANCIS W. WHITTAKER, Respondent, v. THE N. Y. & HARLEM R. R. CO., Appellant.

      Decided December 1, 1884.

      j¥ew trial on ground of surprise.

    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal by defendant from order denying bis motion for a new trial, made at special term on affidavits, and upon the grounds of surprise and newly-discovered testimony.
    The grounds upon which the motion was based are : (1) that the testimony of the plaintiff as to the amount of wages which he had earned prior to the loss of his right arm, was untrue ; (2) that the defendant’s counsel was surprised by this testimony of the plaintiff on the trial.
    The court at General Term, said :—“It is doubtful whether when the defendant is apprised by the pleadings or nature of the case that the employment of the plaintiff and his compensation for it at the time of the accident, will probably affect the assessment of damages, and he has full opportunity to procure witnesses as to the facts, it can be said that the defendant was surprised by unfavorable testimony on the part of plaintiff. He was bound to anticipate that the testimony might be so much against him that it would be expedient or necessary to correct by witnesses any unfavorable testimony, whether it was unfavorable to a slight or to a great extent. The mere fact of false testimony is not ground for a new trial. Beyond this, the affidavits below, pro or con, leave it doubtful, or do not make it certain, that plaintiff’s testimony as to his wages was false in substance. The most certainty for defendant relates to the plaintiff testifying that he got $65 a week from Barnum. It is not certain that he did not mean that he had in all that amount from Barnum and others, at the time he received $35 from Barnum.”

      H. H. Anderson, for appellant.

      Chauncey S. Truax, for respondent.
   Opinion

Per Curiam.

Order affirmed, with $10 costs.


text:
    DANFORD KNOWLTON, et al., Respondents, v. JOSEPH BANIGAN, Appellant.

      Decided December 1, 1884.

      Contract of sale of merchandise—comt/niction of—when made subject to vendee's approval as to quality.—Be-sale by vendors for account of vendee—notice of time and place not necessary.

    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Appeal from a judgment entered upon the report of the late ex-Judge Joseph S. Bosworth, as referee, in favor of the plaintiffs and against the defendant for $552.10, exclusive of costs and interest.
    The action was to recover damages for non-performance of a contract of sale of certain rubber, brought by the plaintiffs, as vendors, against the defendant, as vendee. The complaint alleged a sale by the plaintiffs as copartners of certain rubber to the amount of $3,827.63, through a broker, under bought and sold notes ; that the rubber was duly tendered to the defendant who refused to take it; that, therefore, and on the first day of November, 1882, the plaintiffs delivered notice in writing to the defendant, that they should sell the rubber for his account as his agents and hold him responsible for the difference and for expenses ; that the rubber was of usual merchantable quality ; that they did so sell, and the deficiency and expenses were $552.10, for which they ask judgment. There are practically two questions of law involved, viz. : 1st. Did the defendant, under the contract, have the right to reject the goods, whatever their quality ? 2d. Was the notice of re-sale due notice ? The referee wrote as follows :—“ This action is brought to recover damages caused by the non-performance (as it is alleged), by the defendant, of a contract, in the words and figures following, viz. : ‘New York, October 19th, 1882. Sold for account of Messrs. Knowlton & Go. To Mr. J. Banigan, Fifty bales rubber, if Guayl., 80c. per lb. ; if Guayl. and Esmeralda mixed, 82-J-c. per lb. ; if Esmeralda, 85c. per lb., cash; quality to be approved on dock. Ex. City of Para SS., now in port. Geo. G. Cowl, Broker.’ It is conceded that Cowl was authorized by each party to the contract, to make it. It is clear that the rubber contracted to be bought and sold was then on the steamship Para, in this port, It was tendered to the defendant, and on an examination of it on the 24th of October, the defendant refused to take it, or to pay for it. On the 2d of November the plaintiffs sold it, in the usual way, for account of the defendant, for $3,262.25. The plaintiffs claim to recover damages to the amount of $750. The rubber, at the contract price, would amount to $3,827.63. The defendant insists—First: That, by the terms and legal effect of this contract, the rubber was sold to, and bought by him, subject to the condition of his approving of it; that if he did not, in fact, approve of it, no matter how clear it may be on the evidence, that the quality of the rubber satisfied the terms of the contract, he was not bound to take it, or to pay for it. That the sufficiency of his reasons for not approving of it is not an open question; that his determination of it is final and conclusive upon the parties. I think that the words, ‘ quality to be approved on dock, ’ were inserted to designate the place where, and, substantially, the time within which, the rubber was to be examined by the defendant. It was tb be examined on the dock of the steamer named, and after it had been discharged from the steamship, and before the removal of it from the dock would be necessary. If the purchaser accepted the rubber, he would take charge of it and direct what should be done with it; if he refused to take it, the plaintiffs would then take such action in reference thereto, as they might be advised. The defendant, of course, was not bound to accept of the rubber, if its quality did not satisfy the terms of the contract, even though nothing had been said in the contract about its quality. To determine that question, it was to be examined c on the. dock. ’ So the parties agreed. The question raised by the defendant’s first objection, is whether he was bound to take it even if the rubber was ‘ of the usual merchantable quality ’ of the class of goods described in this contract. I think that the agreement to sell and to purchase was absolute and not subject to any condition, except that the rubber should be of a quality which satisfied the terms of the contract. The cases cited by the defendant’s counsel do not conflict with this view of the meaning of the contract. ' In Gray v. Central E. R. Co. (11 Hun, 70), by the words of the contract, the corporation ‘ offer to buy the steamboat John Adams, . . . provided, upon trial, they are satisfied with the soundness of her machinery, boilers, etc.’ ... It was held in that case, that the terms of ‘ the agreement left it entirely for the defendants to determine whether or not' they were satisfied.’ I do not see how the court could have decided otherwise. On the part of the corporation it was an offer ‘ to buy ’ provided they are satisfied. It was left to the corporation, absolutely and unconditionally, to determine the question of soundness of the particulars specified. Its determination that it was-not satisfied, terminated the contract. Several cases, to the like effect, are cited in the opinion, and among others, Heron v. Davis (3 Bosw. 336). Although I do not find any report of this case in the reports of the court of appeals, I find a note made by me on the case in 3d Bosworth, that the judgment was affirmed by the court of appeals in October, 1862. The defendant also cited the recent decision of the .general term of the first department in O. T. & S. Russel v. Allerton (Daily Beg. Dec. 29, 1883). In that case the contract shows on its face, that the only use which the defendant was to make of the steamship, was to ship live cattle. He wanted it for no other purpose. It was to be fitted up so as to have appropriate ventilation for such use of it. Whether such ventilation was provided or not, the defendant was to determine. In this case, there is nothing suggestive of the idea that the rubber was bought or sold with reference to any use to be made of it, to which any good rubber of the kind, described in the contract, was not adapted. There are numerous buyers of rubber in this city who buy extensively. In 1881 some eighteen million pounds of it were sold in the city of New York, and in 1882 some twenty-one million pounds. Presumptively, a sale of it could be made on almost any day at its market value. This rubber was re-sold on the 2d of November at its then market value. In the present case, the agreement to purchase is absolute, but the defendant was not bound to accept anything substantially different from the article which he had contracted to purchase. To determine whether the rubber tendered was such as he had agreed to buy and pay for, there must be an opportunity to inspect and determine that question. It was agreed that this examination and determination should be made on the dock. If found to be of the quality which the contract imports it to be, it was the defendant’s duty to take it and pay for it the contract price.
    “ Second.—Did the quality of the rubber satisfy the terms of the contract ?
    “ As to this question the plaintiff, by putting in evidence the original and amended answer of the defendant, has placed himself in the same predicament that another plaintiff did, by a like act, in Mott v. Consumers’ Ice Co. (13 N. Y. 543). These answers allege in effect that the rubber in question ‘was not of the kind, quality and value’ which the plaintiffs agreed to sell, but ‘was defective, and of a poor and inferior grade, quality and value, and wholly different from the rubber agreed • to be purchased by the defendant of the plaintiffs.’ If the other evidence establishes clearly that the rubber was of good quality, much importance cannot in this case be attached to these allegations in the answers. The evidence shows clearly, as I think, that the defendant never saw the rubber or any part of it. Of course these allegations are not expressive of any opinion of the defendant, based on an examination of the rubber ; they are allegations which he was willing to assume the responsibility of making, and which he might possibly have intended to believe, although he had not any personal knowledge acquired by an inspection of the rubber. Unless more force is to be given to this part of the answers than would be given to his testimony as a witness, that the quality was such as these allegations in the answers assert that it was, with the further evidence that he never saw it, it would not improve the force of the other evidence as to its quality, to any appreciable extent. All of the evidence affecting the question convinces mee that the rubber was of a good quality. . . .” After a lengthy consideration of the evidence, the referee proceeds: “. . . The plaintiffs, therefore, were informed by the defendant himself, early November 1, 1882, that the rubber had been rejected, because, as the defendant construed the contract, the rubber was bought ■ subject to his approval of it, and that he was under no obligation to approve of it, whatever its quality may have been, unless he chose to do so, and that, in the exercise of this unconditional right, he rejected it. This letter does not suggest any wish on the part of the defendant to have any interview with the plaintiffs in respect to the rubber. He holds to the position taken on the 24th of October. He rejects the rubber absolutely and unconditionally. But the letter does show that if the plaintiffs ‘have anything to say to Mr. Banigan they can say it on Thursday of this week, ’ which would be November 2, 1882. On receiving this letter the plaintiffs acted promptly, and notified Mr. Banigan that day by telegram and also by letters, that the rubber would ‘ be sold at once, ’ and on his account. The telegram reads thus : ‘We shall sell the rubber which has been the subject of correspondence, at once, unless advised to the contrary. We understand the market price is nominally seventy cents (70 cents).’ The defendant received this telegram on the first of November. It advised him that the market price of rubber was such, that on the re-sale of it, it could not be expected that over seventy cents could be got for it. It also advised him of the disposition of the plaintiffs to conform to his wishes in making a re-sale if he had any instructions or advice to •give. Two letters were also written the same day, both in the same terms. One addressed to the defendant at Providence, E. I., where he resided, and the other to him at his office, 80 Eeade street, in this city. The body of each letter was in these words, viz. : £ Dear Sir,—We have this day notified you, also by telegram, that we shall sell the rubber which was the subject of correspondence between us, and specified in our bill of sale of the 19th ult., at once and on your account. The rubber is constantly losing in weight, and is stored at an expense, and we judge it best to sell at once for you, and shall look to you for our loss in the transaction. ’ The defendant, by this letter of October 21, had notified the plaintiffs that he would be in this city on Thursday, November 2, and that the plaintiffs could then say to him anything they might wish to say. In answer to that the plaintiffs notify him on the same day, that they shall sell the rubber for his account £ at once, unless advised to the contrary. ’ This notified the defendant that if he had anything to say to the plaintiffs on this subject they would pay attention to it, and in effect, that if he wished the sale delayed, or none made at present, they would respect his wishes and conform to any reasonable instructions he might give. He made no communication to the plaintiffs, and did not call on them on the 2d of November. The rubber was sold on the second, in the usual way in which sales of rubber were made, and at the then market rate of such rubber, as this contract called for. The sale was not concluded until about 3 P. M., so that had Mr. Banigan chosen to have said anything to the plaintiffs in respect thereto, he had ample opportunity to do so. Mr. Banigan being in the city, and not having called on the plaintiffs or communicated with them, they commenced this action, by the service of a summons on him, on the third of November.” After further consideration of the evidence, the referee proceeds : “. . .- The rubber was re-sold, and in making such re-sale it was sold in the usual way in which rubber was sold; it was re-sold in good faith; reasonable efforts were made to obtain the best price that could be obtained, and it was sold at the then market price of such rubber, as is specified in the contract in question. The contract price was $3,827.63.
    It was re-sold for . ...
    The expenses attending the re-sale were
    Net proceeds of re-sale The difference being ....
    $3,362 25 49 02
    $3,313 23 ■ $514 40
    “The plaintiffs are entitled to recover with interest from November 2,1882, the day of re-sale (Pollen v. Le Boy, 30 N. Y. 549 ; Mason v. Decker, 72 lb. 595). In addition to the commission paid to the broker, who made the resale, for his services as such broker, the plaintiffs claimed a commission for themselves of 4 per cent., amounting to $134.49. I am not aware of any principle on which this claim can be sustained, and disallow it. There is no proof of any special service rendered by the plaintiffs personally, and of its value.”
    The court at General Term said :—“ A consideration of this case satisfies us that the learned referee properly disposed of all the questions of fact and law. We see no good reason for disturbing the result reached by him. The referee has fortified his decision by an elaborate and carefully prepared opinion, which is entirely satisfactory to us, and we adopt it, as expressive of the justice and law of this case.”

      J. B. Dill, for respondent.

      George B. Ashley, for appellant.
   Opinion

Per Curiam.

Judgment affirmed, with costs.


text:
    KATE J. MUSGROVE, Appellant, v. THE MAYOR, &c., Respondent.

      Decided February 2, 1885.

      Form of denials under Code, §§ 500, 526.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal from a judgment dismissing the complaint.
    The court at General Term said :—“ The negligence of the defendant was specifically denied in the answer, and this case differs in that respect from the case of Hoffman v. N. Y. &c. R. R. Oo. (50 Super. Ct. 403), in which case the denial was of ‘ each and every allegation in the complaint, except as herein admitted, qualified or explained,’ and the answer did not contain a general, or specific denial of any of the allegations of the complaint. The denial in this action is ‘upon information and belief,’ which is a form of denial permitted by section 526 of the Code of Civil Procedure and is not inconsistent with section 500 (Brotherton v. Downey, 21 Hun, 436). I can, however, see no objection to the pleading using the exact words of section 500, and deny ‘any knowledge or information of the allegations of the complaint sufficient to form a belief.’ No facts were shown on the trial that would warrant the jury in coming to the conclusion that the defendant had been negligent in allowing the ice to remain on the sidewalk. The complaint was rightly dismissed, for the reasons stated by the court on the trial. ”

      Benjamin Yates, for appellant.

      D. J. Dean, for respondent.
   Opinion by Truax, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred.

Judgment affirmed, with costs.


text:
    ALFRED COOKE, Respondent, v. ROBERT APPLETON, Jr., et al., Appellants.

      Decided February 2, 1885.

      Attachment against non-resident—transaction of business within jurisdiction of court no protection—non-residence of plaintiff.

    Before Truax and O’Gorman, JJ.
    Appeal from an order of special term denying motion to set aside a warrant of attachment.
    The Court at General Term said :—“The order of the special term should be affirmed. The granting or refusing a warrant of attachment is within the judicial discretion of the court, and there is no reason for the defendants’ claim that snch discretion was not properly exercised in this case. The affidavits show that the defendants, although having their place of business and business property in the city of New York, yet have their legal residence in New Jersey (Wallace v. Castle, 68 N. Y. 370). The fact that the plaintiff is a non-resident of this state does not exclude him from the aid of a warrant of attachment to enforce his legal claim. There is no reason, in law or in public policy, for making such a distinction as against foreign creditors.”

      Horace W. Fowler, for appellants.

      Frederick A. Ward, for respondent.
   Opinion by O’Gorman J.; Truax, J., concurred.

Order affirmed, with $10 costs.


text:
    NICHOLAS F. PALMER, as Ex., &c., Appellant, v. GEORGE A. MORRISON, Respondent.

      Decided February 2, 1885.

      Assignee in bankruptcy—requisites of sale real estate by.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JX
    Appeal by plaintiff from judgment for defendant, entered upon findings, etc., at special term.
    Action for specific performance of contract for sale of real estate. The plaintiff derived his title to the land in question through a deed made by Wm. O. H. Waddell, as assignee in bankruptcy of Eobért H. Hartshorn, who was adjudicated a bankrupt under the bankrupt act of 1841. There was no conveyance of the property to the assignee. The assignee sold the property at auction on May Y, 1844. No order of the bankrupt court was granted, fixing the time and manner of said sale, upon which ground judgment was given for defendant.
    The court at General Term said :—“ The case of Smith v. Long (3 Civ. Proc. Rep. 396 ; 12 Abb. N. C. 113), controls the decision of this appeal.”

      Will Man, for appellant.

      John M. Bowen, for respondent.
   Opinion

Per Curiam.

Judgment affirmed, with costs.


text:
    IN THE MATTER OF THE APPLICATION OF THE AMERICAN SURETY Co. for a Rule, &c.

      Decided February 2, 1885.
    Before Sedgwick, Van Vorst and Freedman, JJ.

      Elihu Root, for the application.
   Per Curiam.

The rule asked is substantially a repetition of the statute on the subject, and this statute has now been so often construed in cases reported, that a rule is not needed for the practical application of the statute. If there should be, the opinion of the court being that there is not anything in a rule of the kind which might be intended to direct what the court at special, term should do in each particular litigation, such a rule would contravene the statute which intends that each application shall be passed upon on its own merits after hearing both sides.

The application should be denied.


text:
    EDWARD ROBERTS, Appellant, v. JOSEPH F. ISMAY, Impleaded, &c., Respondent.

      Decided February 2, 1885.

      Parties.—In an action of ejectment mortgagees cannot be made parties under § 452 Gode.

    Before Sedgwick, Ch. J., Truax and O’Gorman, J.
    Appeal by plaintiff from an order making the respondent a party defendant.
    The action was in ejectment and the sole defendant was one Baumgarten. The respondent held a mortgage upon the land affected by the action, made by defendant Baumgarten. The respondent made an application to the court below that he be made a defendant on the ground that the defendant Baumgarten had colluded or would collude to allow the plaintiff to take judgment in the ejectment. The court granted the apphcation.
    The court at General Term said “It is agreed that the judgment in ejectment could not affect the title as against the respondent. If he were made defendant, the plaintiff could make no claim against him which would affect the issue between the parties as they stood originally. Nor could the respondent make any defense which would prevent judgment as between the original parties, according to the defense the original defendant chose to make. Under section 452 of the Code of Civil Procedure the respondent had no interest in the subject of the.action,because the action or judgment in it would not impair any interest of respondent nor had the mortgagee any title to the property which the judgment could affect.”

      B. A. Willis, for appellant.

      Felix Murphy, for respondent.
   Opinion

Per Curiam.

Order reversed, with $10 costs.


author: O’Gorman, J.

text:
    ALEXANDER E. DESSERT, Respondent, v. CHARLES GRAHAM, et al., Appellants.

      Decided March 2, 1885.

      Examination of party after issue and before trial—sufficiency of affidavit for.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    This action was brought to recover damages for an injury alleged to have been sustained through the negligence of the defendants. The complaint alleged that defendants carelessly . . caused and permitted a rope attached to a derrick at certain buildings, to be left hanging across the southerly sidewalk of a certain street, at such an elevation as to be a nuisance and dangerous to the life and limbs of passers-by. These allegations were denied by the answer. Upon an affidavit setting forth the substance of the pleadings and continuing, “ Deponent further says that it is material and necessary for the plaintiff to know and to show what the defendants were doing at said building at the time of said accident, who owned, and who then used the said derrick, and under whose orders the work done with the derrick was carried on, and what relation such person or persons so using or controlling said derrick sustained to said defendants, and it is the intention of deponent to use the deposition on the trial of this action, and that without such information and proof said plaintiff cannot safely proceed to trial. That no other or previous application has been made for this order ”—plaintiff’s attorney obtained an order for the. examination of defendants before trial. A motion was made to vacate the order, which was denied. From the order entered on the denial this appeal is taken.

      Samuel Greenbaum, attorney, and of counsel for appellant,
    argued :—I. ■ The affidavit upon which the order is based is insufficient to warrant the granting of the order, for the following reasons : First. It does not show that the testimony of the defendants is “material and necessary,” as required by section 872 of the Code of Civil Procedure. The affidavit states that it is “material and necessary for the plaintiff to know and to show what the defendants were doing at said building, etc.” It is not sufficient to merely allege that the examination is “material and necessary for the plaintiff to know, etc.” Facts must be alleged showing to the court the “materiality and necessity” of the desired examination (Beach v. Mayor, 14 Hun, 79; Chapin v. Thompson, 16 Ib. 53; Crooke v. Corbin, 23 Ib. 176). The object of these examinations is not to enable a plaintiff to find out whether or not he has a cause of action against the defendant. This principle has been repeatedly upheld by this court (Juillard v. Hamlin, 2 Civ. Pro. 321; Kirkland v. Moss, Ib.). Secondly. The affidavit does not state that the facts desired of defendants are not within plaintiff’s knowledge or are not obtainable by him irrespective of the defendants. It thus clearly appears that the object of the examination is in the nature of a “fishing” expedition, which will not be tolerated (Schepmoes v. Bowsson, 52 How. 401). Thirdly. It appears that the allegation is not made in good faith.
    II. But the testimony sought by plaintiff is of such a nature that it would tend to criminate defendants. Defendants cannot and should not be made to criminate themselves. It has been repeatedly held that a party in an examination before trial cannot be compelled to disclose any matter which may subject him to a criminal proceeding (Corbett v. De Comeau, 44 Super. Ct. 306 ; Yomato Trading Co. v. Brown, 63 How. 283 ; Kinney v. Roberts, 26 Hun, 166 ; Phoenix v. Dupuy, 2 Abb. N. C. 146 ; Beebe v. Richardson, 2 Civ. Pro. 320).

      S. B. Livingston, attorney, and of counsel for respondent,
    cited Sweeny v. Sturgis, 24 Hun, 164 ; Goldberg v. Roberts, 5 Civ. Pro. 96 ; Sweeny v. Sturgis, Ib. 166 ; Tenney v. Mautner, 1 Ib. 64, and note; Harrold v. El. R. R. Co., 21 Hun, 268.
   By the Court.

O’Gorman, J.

The plaintiff’s moving papers sufficiently showed that the information he sought was material and necessary, and that he intended to use the testimony so obtained at the trial, and that he could not safely proceed to trial without it. If, in the course of the examination of defendants, any questions be put to them, as to which they may be by law entitled to refuse to answer, their right so to refuse is in no way impaired, and 'will be protected by the court.

The order appealed from is affirmed, with $10 costs.

Sedgwick, Ch. J., and Truax, J., concurred.


text:
    Abraham B. Wetmore, as executor, &c., respondent, v. Thomas E. Porter, appellant.
    Decided December 1, 1884.
    Exceptions heard at general term.
    Edward Pitch, for appellant.
    E. Terry, for respondent.
    Before Sedgwick, Ch. J. and Van Vorst, J.
   Opinion by Van Vorst, J. Judgment affirmed, with costs (see 92 N. Y. 76).


text:
    Michael Feely, respondent, v. The Manhattan Ry. Co. et al., appellants.
    Decided December 1, 1884.
    Appeal from order directing bill of particulars. Action for alleged damages to premises in Division street, in the city of New York, arising from the construction and operation of the elevated railroad there. The defendant, The Manhattan Railway Company, was ordered to serve a bill of particulars respecting the tenth defense, as follows : “ This defendant alleges that the plaintiff is barred by his own negligence, acquiescence and the lapse of time for maintaining this action.’
    Deyo, Duer & Bauerdorf, for appellant.
    Roger Foster, for respondent.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
   Per Curiam.

The order appealed from should be affirmed, with costs.


text:
    James T. Swift, et al., respondents, v. Thomas L. James, as assignee, &c., impleaded, &c., appellant.
    Decided December 1, 1884.
    Appeal from order denying defendants’ motion for a bill of particulars.
    Stern and Myers, for appellant.
    Edward M. Shepard, for respondents.
    Before Sedgwick Ch. J., Van Vorst and Freedman, JJ.
   Opinion

Per Curiam.

Order affirmed, with costs.


text:
    George W. Watson, respondent, v. Hooper C. Barrett, appellant.
    Decided December 1, 1884.
    Appeal by the defendant from a judgment entered against him upon the verdict of a jury, and from the order denying his motion upon the minutes for a new trial.
    Jas. K. Hill, Wing & Shoudy, for appellant.
    Theodore F. Miller, for respondent.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
   Per Curiam.

The record discloses no ground for reversal. The judgment and order should be affirmed, with costs, for the reasons assigned by the learned judge below, on denying defendant’s motion for a new trial.


text:
    Mary Emma Wyckoff, respondent, v. Seth W. Scofield, et al., appellants.
    Decided December 1, 1884.
    Appeal from order directing the payment to receiver of certain rents collected.
    Harrison & Langdon, for appellant.
    W. I. Butler, for respondent.
    S. A. Noyes, for receiver.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ
   Per Curiam.

The order should be affirmed, with costs, on the opinion rendered by the learned judge at special term.


text:
    Otto Geisenheim, et al., respondents, v. Charles C. Dodge, et al., appellants.
    Decided December 8, 1884.
    Appeal from judgment.
    Dill & Chandler, for appellants.
    Baldwin & Blackmar, for respondents.
   Per Curiam.

None of the appellants’ exceptions are well taken. The judgment is right, and must be affirmed with costs, on the opinion of the referee, which correctly disposed of the questions involved. Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ. (See ante, p. 169).


author: per Curiam.

text:
    John Newman, respondent, v. Edmund C. Marshall, appellant.
    Decided December 22, 1884.
    Appeal from judgment and order denying motion for new trial.
    Edmund Van Ness, for appellant.
    William J. Hardy, for respondent.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
   Opinion

per Curiam.

Judgment and order appealed from affirmed, with costs.


text:
    John Huggard, appellant, v. Simon Lauterbach, respondent.
    Decided January 5, 1885.
    Appeal by plaintiff from judgment entered upon ' dismissal of the complaint at trial term. Action was for damages, for defendant’s alleged fraud in buying goods from the plaintiff, with intent not to pay the purchase price.
    Theron G. Strong, for appellant.
    Blumenstiel & Hirsch, for respondent.
   Opinion by Sedgwick, Ch. J.; Van Vorst and Freedman, JJ., concurred. Judgment affirmed, "with costs.


text:
    Robert M. G. Dodge, appellant, v. Francis A. Palmer, et al., respondents.
    Decided January 5, 1885.
    Appeal from judgment and order denying motion for new trial.
    0. A. Clement, for appellant.
    Wheeler & Souther, for respondents.
    Before Sedgwick, Ch. J, and Van Vorst, J.
   Opinion

Per Curiam.

As to the defendant Palmer, judgment and order affirmed, with costs; as to defendant Alger, reversed, and a new trial ordered, with costs to abide the event.


text:
    Abraham Van Dolsen et al., appellants, v. William P. Abendroth, respondent.
    Decided January 5, 1885.
    Appeal by plaintiff, from judgment entered upon a direction of a verdict for defendant.
    Carlisle Norwood, Jr., for appellant.
    Thomas G. Ritch, for respondent.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.
   Per Curiam.

Judgment reversed and new trial ordered,-with costs to abide the event. Durant v. Abendroth, court of appeals, MS. opinion of Rabat,to, J.


text:
    Samuel P. Knapp, respondent, v. Ulrich Simon, Imp., &c., appellant.

      Decided January 13, 1885.
    Appeal from an order, allowing plaintiff to amend complaint by adding anew cause of action. H. W. Bookstaver, for appellant. D. M. Porter, for respondent. The court at general term, after reviewing the history of the case, held :—■“ On the whole, the history of the case discloses that the defendant has not, up to the trial of the proposed amendment, been called to litigate the rights of the plaintiff, under the alleged special agreement, and that the leave to amend should have imposed as a condition the payment of the costs of the action up to the time of amendment, excepting any allowances that may have been granted, and also the cost of the appeals that have been argued ; with $10 costs of the motion for leave to amend. ”
   Opinion by Sedgwick, Ch. J., Van Vorst and Freedman, JJ., concurred. Order below modified, in the manner directed, and as modified affirmed, with $10 costs of appeal to defendant.


text:
    William G. Dominick, et al., respondents, v. C. C. Murphy, appellant.
    Decided February 2, 1885.
    Appeal from order referring the action to a referee to hear and determine the issues.
    Wingate & Cullen, for respondents.
    D. M. Helm, for appellant.
    Before Sedgwick, Oh. J., and O’Gorman, J.
   Opinion by O’Gorman, J. Order affirmed, with $10 costs.


text:
    Horace W. Barton, respondent, v. Robert Caterson, appellant.
    Decided February 2, 1885.
    Appeal by defendant from an order denying his motion for a further bill of particulars.
    Augustus O. Brown, for appellant.
    Richard S. Newcombe, for respondent.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.
   Per Curiam.

As it is not manifest that the court should have used its discretion, otherwise than by denying the motion, the order is affirmed, with $10 costs and disbursements to be taxed.


text:
    Jacob Rubino, appellant, v. William L. Scott, respondent.
    Decided February 2, 1885.
    Appeal from order denying examination before trial.
    James M. Fisk, for appellant.
    Thomas G. Shearman, for respondent.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
   Per Curiam.

Order affirmed, with $10 costs.


text:
    Jacob Romberg, appellant, v. Minnie Tobias, et al., respondents.
    Decided February 2, 1885.
    Appeal from order taxing costs.
    Wehle & Jordan, for appellant.
    Michael J. Kelly, and Joseph C. Wolff, for respondents.
    Before Van Vorst and Freedman, JJ.
   Per Curiam.

The order appealed from is affirmed, with $10 costs and disbursements on the appeals.


text:
    Jacob Romberg, appellant, v. Minnie Tobias, et al., respondents.
    Decided February 2, 1885.
    Appeal by plaintiff from judgment at special term that complaint be dismissed. The action was to set aside conveyance of real estate made by defendant Tobias to defendant Abrams, alleged to have been made by defendant Tobias in fraud of her creditor, the plaintiff.
    Henry Wehle, for appellant.
    Michael J. Kelly, for respondent Tobias.
    Joseph C. Wolff, for respondent Abrams.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
   Per Curiam.

The testimony sustains the finding, that defendant Abrams was a bona fide purchaser, without notice of fraud in the part of Tobias. The testimony adduced to show that Abrams held the land for Tobias, in reality shows a benevolence of Abrams which did not affect the title. Judgment affirmed, with costs.


text:
    Peter Born, respondent, v. Henry Schrenkeisen, et al., appellants.
    Decided February 2, 1885.
    Appeal by defendants from judgment against them entered on decision of judge at special term.
    Porter & Kilvert, for appellants.
    Wehle & Jordan, for respondent.
    Before Sedgwick, Ch. J. and Truax, J.
   Per Curiam.

Judgment affirmed, with costs, on opinion of the judge at special term.


text:
    John M. White, appellant, v. The Iron Steam Boat Co., respondent.
    Decided February 2, 1885.
    Before Van Vorst and Freedman, JJ.
   Per Curiam.

The reasons assigned' by Sedgwick, Ch. J., who presided at the trial, justify the order made by him, granting a new trial. Upon an examination of the case, and a consideration of the points submitted on this appeal, we are led to the same conclusion as that reached by the learned trial judge. Order affirmed, with costs and disbursements.


text:
    Amelia Merritt, respondent, v. John H. Merritt, appellant.
    Decided March 2, 1885.
    Appeal from order that defendant pay alimony.
    Edward P. Wilder, for appellant.
    Edgar Ketchum, for respondent.
    Before Sedgwick, Ch. J., and Truax, J.
   Per Curiam.

The facts show that the discretion of the court below was duly exercised. The fact that the plaintiff had means of her own should be considered and have due weight, especially as to the amount, but of itself it does not require that no alimony should be given. Order affirmed, without costs.


text:
    Ignatz Oesterreicher, appellant, v. Thomas J. Raisbeck, respondent.

      Decided March 2, 1885.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
   Per Curiam.

The judgment appealed from should be affirmed, for the reasons stated in Oesterreicher agt. James Raisbeck, ante, p. 416, but without costs.


author: By the Court.—Ingraham, J.

text:
    GEORGE E. HYATT, as Receiver, &c., Respondent, v. JACOB SWIVEL, Impleaded with JOSEPHINE LIBBY, THE NEW YORK CAFE CO. (Limited), Appellants.

      Corporation—Certificate of stoclc—compelling issue of while one therefor is outstanding.—Summons — order for publication.-—• Evidence—affidavit talcen without state.—Judgment—order vacating—when apipealable.

    When an action is brought against the transferrer and transferee of stock in a corporation, and also the corporation, to have the transfer adjudged void, and to have the corporation deliver to the plaintiff its certificate for a like amount of stock, and the transferee is not brought into court, so that the judgment in the action will be inoperative as against him, the court has no authority to render a judgment against the corporation adjudging it to issue to the plaintiff a new certificate, while the other remains outstanding.
    An order for publication of summons, based on an affidavit in which the only fact alleged is, that the defendant against whom the publication is desired is a non-resident, and for that reason personal service within the state cannot be made, is void.
    A certificate as to the official character and genuineness of signature of the officer taking an affidavit in another state, is insufficient to entitle the affidavit to be received as legal evidence of the facts therein stated, if it does not certify both that the officer was duly authorized to take affidavits in that state, and that the certifying officer is well acquainted with the handwriting of the officer taking the affidavit and believes the signature to the verification to be genuine. An affidavit of service of summons taken in another state, having attached to it such defective certificate of proof is no proof of service.
    In case of judgment in action above indicated, entered ex parte on default of corporation defendant, adjudging it to issue a certificate to plaintiff, it is the power and duty of the court, on motion of such defendant, it being shown that the transferee had not been brought into court, to vacate it; and an order at special term, denying such motion, is appeal-able to the general term.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided March 30, 1885.
    Appeal by the defendant Swivel from a judgment entered after trial before a judge at special term without a jury. Also, appeal by the New York Café Co. (limited), from an order of the special term, refusing to resettle or modify the judgment entered in this action, and directing the said judgment to be entered nunc pro tunc, as of June 10, 1884.
    The action was to declare fraudulent and void an assignment and transfer of one hundred and forty shares of the stock of the defendant, the New York Gafé Co. (limited), made by defendant Jacob Swivel, to defendant, Josephine Libby, and to require the defendant company to issue and deliver to plaintiff its certificates for a like amount of stock in the name of the defendant Jacob Swivel, plaintiff being a receiver in supplementary proceedings.
    The complaint contained the following allegation : “ That no personal claim or judgment is made or prayed for herein against defendant, the New York Café Co. (limited), but it is made a defendant in order that a final judgment in favor of plaintiff may be made effectual by requiring said defendant to issue new certificates of stock to the plaintiff in the name of Jacob Swivel, and to enjoin said company pendente lite, from making or permitting any transfer upon its books of said stock so standing in the name of defendant, Josephine Libby, as aforesaid and prayed for relief as against the company, “ that said company be required to issue and deliver to plaintiff its certificates for a like amount of stock, in the name of said Jacob Swivel; that until the final judgment herein, the defendant, the New York Café Co. (limited), be enjoined and restrained from making or permitting any transfer on its books of said stock; that a receiver be appointed to take possession of same ; and for such other or further relief as may be just.”
    The other facts appear in the opinion.

      M. J. Dolphin, attorney, and De Witt O. Brown, of counsel for appellants, on the questions discussed by the court, argued
    I. The affidavit for the order of publica-
    tion is insufficient. It merely states that Mrs. Libby is a non-resident of the state of New York, and a resident of the state of Mississippi. It does not prove to the court, that she cannot be served here. So, too, the proof furnished of personal service without the state is fatally defective. There is the affidavit of Eosser, whose name is not given : “D. E. Eosser, being duly sw'orn,” and signed at the end, “D. E. Eosser.” It purports to be sworn to before John L. Gill, clerk of circuit, and ex officio notary public. T. E. McGuire certifies that he is the clerk of the chancery court and ex officio of the board of supervisors, and that John L. Gill was, at the time of signing said certificate, clerk of the circuit court, and ex officio notary public. But McGuire does not certify that he knows the handwriting of Gill; nor that, under the laws of Mississippi, Gill had any authority to administer oaths. Nor is the official character of McGuire vouched for in any manner.
    II. The Café Company was made a defendant, but did not defend the action. The complaint served with the summons notified the company, “that no personal claim or judgment is made or prayed for herein against the defendant, The New York Cafe Company (limited), but it is made a defendant in order that a final judgment in favor of plaintiff may be made effectual by requiring said defendant to issue new certificates of stock to the plaintiff, &c.” By requiring the company to issue new certificates, “ how V’ The company is alleged to be a New York corporation, and it is a misdemeanor to issue a certificate representing existing, outstanding stock, except upon the surrender of the old certificates, and the defendant had the right to suppose, as it was advised by its counsel, that the court could only require it to issue a new certificate, according to law. To issue a new certificate, except upon the surrender of the old, was to increase its capital stock, which it could not do (Mich. Bk. v. N. Y. & N. H. R.R. Co., 13 N. Y. 599 ; Lathrop v. Kneeland, 46 Barb. 432). And if it did this, and the new certificate got into the hands of a bona fide holder, the company is liable (15). And yet the complaint informed the company that no personal claim was made, and no personal judgment would be taken. But the judgment entered makes the company hable tó redeem this over-issue from any bona fide holder of the certificate.
    III. The argument urged, that the court acquired no jurisdiction of Mrs. Libby to render a judgment invalidating her title to the 140 shares, seems overwhelming when applied to the motion made by the company.

      A. Walker Otis, attorney, and of counsel for respondent, on the questions discussed by the court, argued :—I, The court at special term has no power on motion to alter a judgment in a material part (Prentiss v. Machado, 2 Rob. 660 ; Stevens v. Veriane, 2 Lans. 90 ; McLean v. Stewart, 14 Hun, 472 ; Rockwell v. Carpenter, 25 Id. 529 ; Kelly v. McMahon, 19 Week. Dig. 223). ■
    II. The defendant, the New York Café Co. (limited), having been regularly served with the summons and complaint, and having refused to answer, and thereby suffered default, is bound by the judgment, and cannot secure by motion what it should have obtained, if at all, by a trial (Bullard v. Sherwood, 85 N. Y. 253 ; Fleischman v. Stern, 90 Id. 110).

      III. The motion made below was a motion to resettle, and the order denying the same is not appealable.
   By the Court.—Ingraham, J.

The defendant, Swivel, alone answered, and the issues raised by that answer were tried at special term. The New York Café Co. did not answer.

An order was obtained directing the service of the summons by publication on the defendant Libby, she being a non-resident, and personal service of the summons was made on her under the provisions of that order in the state of Mississippi. The defendant Libby did not appear in the action.

The court below found that the assignment by the defendant Swivel to defendant Libby of the certificates for one hundred and forty shares of the capital stock of the defendant, Café Co., was fraudulent and void as to the plaintiff, and directed judgment that the said corporation issue and deliver to a receiver a certificate for the said one hundred and forty shares of the said stock. From this judgment defendant Swivel appealed.

An examination of the evidence shows that there was sufficient to sustain the findings of the court, and so far as the judgment affects the defendant Swivel, there was no error committed that would justify a reversal of the judgment.

It follows, therefore, that on the appeal of the defendant Swivel, the judgment appealed from must be affirmed, with costs.

Judgment was entered without notice to the defendant, Café Company, and without the direction of the court or the judge who tried the case. The judgment directed the said company to issue and deliver to a receiver appointed in this action, certificates for the one hundred and forty shares of the capital stock of the said corporation. The defendant, the Café Company, on affidavit, moved to resettle the judgment by requiring in effect that the surrender of the old certificates before the defendant corporation should be required to issue new certificates for said stock. The court, on hearing the motion, directed the same judgment to be entered nunc pro tunc as of June 10, 1884, and from this order the defendant, Café Company, appealed.

The stock in question had been transferred to the defendant Libby by Swivel, and stood in her name on the books of the corporation. That transfer was good as to all the world except creditors, but as to them it was voidable only on it appearing that it was in fraud of their rights. Swivel was the owner of the stock, and on his transfer of it to Libby, she became vested with an absolute title to the stock, subject to the right of the creditors to attack the transfer as fraudulent ; and her right to the stock could not be taken away except in an action in which she was a party and was before the court.

Until the delivery of the certificates of stock by her with a proper transfer or assignment, the company had no right to transfer the stock, represented by said certificates, or issue new certificates in their place except upon the judgment of a court of competent jurisdiction, in an action in which she was a party. In no way could she be divested of her ownership by the corporation (Kent v. Quicksilver Mining Co., 78 N. Y. 159).

Defendant Libby was a party to this action, and plaintiff attempted to serve her with a summons under an order directing the service of the summons by publication. The affidavit on which, this order directing the publication was granted, was not, however, sufficient to give the judge who granted it, jurisdiction.

The only fact alleged in the affidavit was that the defendant Libby was a non-resident, and for that reason personal service within the state of the summons on her could not be made.

The court of appeals, in the case of Carleton v. Carleton (85 N. Y. 313), held under section 135 of the Code of Procedure, that an affidavit that the-defendant was a nonresident of the state, without proof where the defendant actually was at the time, was not sufficient to give the court jurisdiction to make the order ; that some evidence must be shown from which the court could find that the defendant was not at the time within the state, and personal service of the.summons therein could not, with due diligence, be made, and that the mere fact of non-residence was not sufficient (See also Kennedy v. N. Y. Life Ins. Co., 32 Hun, 35 ; Greenbaum v. Dwyer, 66 How. 266, under § 439, Code Civ. Pro.).

But if the order had been valid, there was no legal evidence that the summons had been served on the defendant Libby under its provisions. Plaintiff presented what purported to be an affidavit signed by D. E. Rosser, and which purported to be subscribed and sworn to before John L. Gill, clerk of circuit and ex officio notary public, and to that was attached a certificate headed : “State of Mississippi, Bolavar County. I, T. R. McGuire, clerk of the chancery court in and for said county, and ex officio clerk of the board of supervisors in and for said county, do hereby certify that John L. Gill, whose signature is attached to the foregoing certificate, is and was at the time of the siging of the said certificate, clerk of the circuit court and ex officio notary public in and for said county, duly qualified to act as such.”

Section 844 of the Code of Civil Procedure provides, that to entitle, an affidavit made out of the state, to be received in an action, it must be accompanied with a like certificate as to the official character of the officer taking the affidavit and the genuineness of his signature, as are required to entitle a deed acknowledged before him .to be recorded in this state.

The certificate required to entitle a deed acknowledged before him in this state is regulated by section 1 of chapter 557 of the laws of 1867. The certificate in question does not comply with the provisions of that section. It does not certify that the officer was duly authorized to take the affidavit, or to take and certify the acknowledgment of deeds to be recorded in that state. Nor does it certify that the clerk signing the certificate is well acquainted with the handwriting of such officer, and believes the signature to the verification of the affidavit to be genuine. The paper is, therefore, not an affidavit, and is no proof of the fact therein stated (Harris v. Durkee, 50 Super. Ct. 202).

It appearing that the order of publication was void, and that there was no proof of service on the defendant Libby, I am of opinion that no judgment should have been entered adjudging that the transfer of the stock of the Café Go. to defendant Libby was void, and directing the defendant, Café Go., to issue a new certificate therefor, and that so much of the order as directs the entry of the judgment nunc pro tunc, as of June 10, 1884, should be reversed, and the judgment vacated with costs and disbursements to the New York Café Go. (limited).

Sedgwick, Oh. J., and Freedman, J., concurred.


text:
    MARGARET MOORE, et al., as Ex’rs, &c., Respondents, v. WILLIAM LEONARD and ROSE LEONARD, Impleaded, et al., Appellants.

      Usury—finding against not disturbed.—Notice to produce—what compliance with.

    In an action to foreclose two mortgages, the defense was usury. Plaintiffs relied on two certificates as to the validity of the mortgage, and as to there being no defense to them. Defendants called a witness who testified to hearing a conversation between one of defendants and the plaintiffs’ testator (the mortgagee), tending to establish the usury-relied on, and also - called two others who testified to admissions by the mortgagee tending in the same direction. The court below found in favor of plaintiff. Held, that the finding should not be disturbed.
    A notice to produce a certain account-book containing entries of money paid by M. to L. and by L. to M., was given. A book was produced which complied with the notice. Meld, a compliance with the notice, although a witness who testified to having seen this book at a certain interview also testified, that at the same interview he had seen another book.
    Before Sedgwick, Oh. J., O’G-orman and Ingraham, JJ.

      Decided March 30, 1885.
    Appeal from a judgment entered upon the findings of a judge on a trial at special term, without a jury.
    The action was to foreclose two mortgages, and the defense was usury. The facts appear in the opinion.

      E. Seymour, attorney, and of counsel for appellants, argued among other things
    I. The court erred in ques tioning Moore’s identity, not in issue, and had no right, contra unimpeached and uncontradicted testimony, to presume the man wasn’t Moore, or disbelieve witnesses who had no interest whatever in the result of this suit, or inducements to commit perjury (25 N. Y. 361; 1 Cow. 109).
    II. Neither of the certificates can be considered, under the surroundings of this case, an estoppel. Both parties knew of the usury, and any statement to the contrary was a falsehood, a device to cover usury; but there is no evidence that Leonard knew their nature or contents. The only question of fact before- the court, was whether each mortgage was void for usury (2 R. S. ch. 4, tit. 3 ; 1 ed. p. 772, § 5 ; 1 Cow. Trea. 3 ed. 284, 286). It is insisted, no estoppel can be set up between immediate parties to avoid the force of the statute against usury, and no so-called equitable estoppel exists in this case (4 Barb. 501; 22 Hun, 264 ; 1 Smith Ldg. Cas. 1847, 511; 62 N. Y. 96 ; 69 Ib. 113; 73 Ib. 597 ; 82 Ib. 129).

      Kelly & Macrae, attorneys, and Wm. F. Macrae, of counsel for respondents, argued:
    Usury is a defense which must, not only be strictly proven, but must be affirmatively and positively established (Tyler Usury, 468). It is not enough that the relation of the witnesses to each other, and the circumstances sworn to by them, render it highly probable that the transaction was usurious; the usury must be- proved, and not left to conjecture. Nor will it avail the defendant that the case makes out usury, if is is not the case made by the answer. The corrupt agreement must be distinctly set up and proved as alleg'ed (New Jersey Co. v. Turner, 1 McCarter, 326 ; Western T. & Coal Co. v. Kilderhouse, 87 N. Y. 434 ; Dagal v. Simmons, 23 Ib. 491).
    II. The testimony of defendants in the case at bar, makes no pretense whatsoever, of proving any actual agreement between the parties. Admissions of a party are to be taken with great and extreme caution. The admissions here are uncertain, indefinite and wholly unreliable, and prove nothing (Booth v. Swezey, 8 N. Y. 276).
    III. It is contended that the court below erred in excluding the contents of a book. There was so much doubt about the identity or existence of the book, or what its contents were, that the court below was justified in using his discretion to exclude the supposed contents. It would be giving great license to a witness to permit him to testify to the contents of a book merely “ glanced at,” when he is confessedly unable to state with any precision or accurracy what the book, if it ever existed, was, or what it contained, or whether it had any reference to the mortgages in suit. The question as to the sufficiency of proof of loss, so as to admit parol evidence of the contents, is entirely in the discretion of the trial court. The case must be quite without proof to authorize an appellate court to find error (Graham v. Chrystal, 1 Abb. N. S. 121; McCullogh v. Hoffman, 73 N. Y. 615 ; Latourette v. Clark, 51 Ib. 641; Bridges v. Hyatt, 2 Abb. 449).
    IV. Parol evidence,» to establish the contents of a writing, must be clear, certain and positive, “such as leaves no reasonable doubt ” (Nickols v. Kingdom Ore Co., 56 N. Y. 618 ; Edwards v. Noyes, 65 Ib. 125 ; Lozer v. Burt, 4 Den. 426 ; Graham v. Chrystal, 2 Keyes, 21 ; Taylor v. Riggs, 1 Peters, 591). The notice to produce served in this action “requires plaintiffs to produce a certain account-book containing entries of moneys paid by William Moore, deceased, to William Leonard, and by William Leonard to William Moore,” and such a book was produced and put in evidence. Whether then, Abbott had ever seen another book, or knew enough about its contents to speak with any accuracy, was very questionable, and the court was quite right in excluding the witness’ confessedly uncertain recollection of its supposed contents.
   By the Court.—Ingraham, J.

The court below found that the bonds and mortgages described in the complaint were given for a valuable consideration received by the defendant, William Leonard, on or before the execution thereof ; that there was no usury upon or for the making of such bonds and mortgages, or either of them.

After a careful examination of the evidence given on the trial, we think there was sufficient to sustain that finding. The plaintiffs proved the bonds and mortgages, and also an instrument in writing dated February 16, 1815, signed by the defendant William Leonard, and duly acknowledged before a notary public. That instrument certified that there was justly due and unpaid on said respective mortgages, viz.: one dated August 11, 1813, and the other dated September 19, 1813 (as described in the complaint), the full amount of the principal secured thereby, together -with interest from the respective dates of said mortgages, and that he (Leonard) had no offsets or legal or equitable defense against the same. Plaintiffs also proved an agreement dated October 30, 1816, signed, executed and acknowledged by William Leonard and Eose Leonard, his wife, and which recites that the said mortgages, being the same mortgages described in the foregoing certificate or instrument, are, and each of them is a good and valid hen for the amounts respectively upon the said premises, and there were no claims or offsets of any nature or kind whatsoever against the respective amounts secured thereby, or any part thereof or the interest due, or to grow due thereon.

It will be noticed that both of these instruments are executed long after the execution of the mortgages in question, and not as part of any alleged usurious transaction. They were both formally executed and acknowledged, and while they did not estop the defendant from' denying the truth of the facts stated in them, they are strong evidence as against him.

The defendant to overcome this proof called a witness, who testified that some time in the second week of July, 1873, he was present at a conversation between the plaintiff’s testator and the defendant Leonard; that Leonard asked Moore to loan him $6,000- to finish the building on the mortgaged premises ; that Moore in reply said, “You know the mortgage of $7,000 is on the property already ; I will cancel that $7,000 mortgage, and I ■will give you $5,000 cash if you will give me a mortgage for $13,000.” Leonard said, “I will agree.” That is all the witness • knew of that transaction; was not present when the mortgage was given ; did not know, and it does not appear, that this agreement was carried out, or that the mortgages in suit were given in pursuance of that agreement.

There was a mortgage for $7,000, which was dated August 8, 1867, and that mortgage, being part of the consideration for the $13,000 mortgage described in the complaint, was owned by Mr. Moore at the time, and was satisfied and discharged by him on August 12, 1873. It might well be that the interest due on that $7,000 mortgage at the time of the execution of the $13,000 mortgage was more than sufficient to make up the difference between the amount of the $13,000 and the amount of the additional $5,000 that the witness McDermott said Moore was, by the agreement he heard, to pay to Leonard, if that agreement was afterward carried out.

The same witness again testifies that he heard another conversation about two months later, and this time substantially the same thing is said about another mortgage, Leonard wishing more money to finish the building. Moore this time says, “You give me a mortgage for $4,000, and I will give you $3,000 cash.” Leonard says, “ That is too heavy,” but finally agrees.

The interview happened eleven years before the trial, and was heard by the witness who had no interest in the property or in the parties, and who appears to have no business in the place except to listen to the conversation between Leonard and Moore.

The trial court, having the witness before it, and having heard his evidence, refused to believe his testimony.

The defendant also called two witnesses to ■ swear to admissions made by Moore to Leonard, in which Moore is made to admit that Leonard gave him a mortgage for $13,000, and received only $12,000, and another mortgage for $4,000 and received only $3,000.

In order to sustain his defense, the defendant was bound to set up in the answer the usurious contract, specifying its terms and the particular facts relied upon to bring it within the prohibition of the statute, and to prove them substantially as alleged (Western Transportation Coal Co. v. Kilderhouse, 87 N. Y. 430).

The trial judge has found that the defendant has failed to prove the usurious agreement alleged in his answer, and we think that finding is supported by the evidence, and should not be disturbed.

No error was committed in excluding the contents of the book that Mr. Abbott says he saw on his visit to Moore. No notice to produce that particular book was given to plaintiffs3 attorney. A notice was served on plaintiffs’ attorney to produce a certain account-book containing entries of money paid by Moore to Leonard, and by Leonard to Moore, and a book was produced on the trial which complied with this notice.

It appears that at the same interview, Mr. Abbott had seen another book, but the notice to produce related to but one book, and the production of the book containing the accounts between the parties, complied with the provisions of the notice. It did not appear that the other book seen by Mr. Abbott contained accounts between Leonard and Moore, or related in any way to the transaction in question, and it further appeared that the witness was allowed, on cross-examination, to testify substantially to the contents of the book.

The other exceptions to the evidence have been examined, but none of them require specific notice. We think none of them well taken.

We think that the judgment appealed from should be affirmed, with costs.

Sedgwick, Oh. J., and O’Gorman, J., concurred.


text:
    JULIUS STERN, Appellant, v. HERMAN KNAPP, Respondent.

      Practice.—motion for leave to amend pleading.

    Where the notice of motion merely asked “for an order permitting the plaintiff to amend his complaint hereinand no copy of the proposed amended complaint was served path the motion papers,—Held, that for want of such service the motion was properly denied.

    Before Sedgwick, Oh. J., and Ingraham, J.

      Decided March 30, 1885.
    Appeal from an order denying motion by plaintiff for leave to amend his complaint.
    The application was based on an affidavit, the pleadings in the case, and a notice of motion, which merely asked “for an order permitting the plaintiff to amend his complaint herein.”

      Louis J. Grant, attorney, and Arthur Furber, of counsel, for appellant.

      Herman Knapp, attorney in person, Martin & Smith, and George A. Strong, of counsel for respondent, on the point decided, argued
    The motion for leave to amend
    was properly denied, because plaintiff failed- to serve any copy of his proposed new complaint. His motion was so broad that to have granted it would not only have permitted the insertion of a new count, setting up a new and different cause of action, but also an amendment of the present count. The notice of motion is simply u for an order permitting the plaintiff to amend his complaint herein.” He should have annexed to his notice of motion a copy of the proposed new complaint, and his failure to do so was of itself sufficient ground for denying his motion (Marquisee v. Brigham, 12 How. Pr. 399 ; Nightengale v. Cont. L. Ins. Co., 2 Law Bull. 15 ; Super. Ct.). How could the special term exercise its discretion, when the plaintiff did not present to it the complaint which he was asking leave to serve ? In effect, he sought an order from the court, giving him unrestrained liberty to amend, as he might see fit.

         Query, whether a notice of motion setting forth the particulars in which it is desired to amend would not be sufficient ? '

   By the Court.—Ingraham, J.

Without determining whether an order refusing to allow a party to amend the complaint is appealable, we think the order appealed from should be affirmed.

The application to amend was made upon the affidavit of the plaintiff and the pleadings in the action. No amended complaint as proposed by the plaintiff was served with the papers on which the motion was made, nor presented to the court on the argument. The court below was compelled to spell out, from the affidavit, the nature and extent of the proposed amendment. -

In applications of this kind, addressed to the discretion of the court, it is the duty of the court to determine whether the application is made in good faith, and to refuse to allow a pleading to be amended if it appears that. the pleading, as amended, would be clearly frivolous, or in violation of any of the settled rules of pleading. This examination can not be made, unless the court has before it the pleading as it is proposed to be amended ; and as the plaintiff did not, in this case, present a complaint amended as he proposed, the court below was right in refusing to entertain the application.

For the reason above stated, and without examining the other objections raised by the respondent, we think the order appealed from should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Oh. J., concurred.


author: By the Court.—O’Gorman, J.

text:
    ANDREW S. TOCKERSON, Respondent, v. MYRON H. CHAPIN, Appellant.

      Action for damages for false representations on a sale—Oha/raeter of representations—what requisite to recovery.—Evidence—Worthlessness of corporate stoch, how shown.

    The worthlessness of stock is proved by a decree of sequestration of the property of the corporation, and when so proved, opinions of witnesses on the subject are inadmissible.
    In an action for damages for false representations on a sale, the representations must relate to some substantial circumstance going to the inducement or essence of the bargain, material to the subject of the negotiation and constituting the very basis of the contract. They must also relate to facts (not to opinions) bearing on the subject of the contract—not to those collateral and incidental thereto. They must also have a vital bearing and influence on the mind of the party in inducing- him to enter into the contract, and must be such as to affect the value of the thing purchased.
    In the case of a sale of shares of stock in a corporation, the plaintiff knew that the property of the company consisted of patent'-rights of an invention for cutting goods, and that the plan of the company was to dispose of royalties, sell shop-rights and machines, and that it had no other source of profit. A prospectus given to plaintiff referred to a certain loom, which it was stated did not belong to the company, but could be purchased from the manufacturers and would cost but little more than the ordinary one. The plaintiff was a machinist, and had made a personal examination of the machine for which the company owned the patent, and was satisfied with its performance. Eeld, th at representation s that the company had orders for 600 looms at $150 each (there being no representation that any profit could accrue to the company therefrom); that five cutting machines at $6,000 each had been ordered by certain named firms; and that a member of one of those firms was a largo stockholder in the company; there being no evidence that their falsity, if they were false, injuriously affected the value of the stock, did not possess the above requisites, and no cause of action for damages could arise out of their falsity.
    Before Sedgwick, Oh. J., and O’Gormax, J.

      Decided March 30, 1885.
    Appeal from a judgment in favor of the plaintiff and . against the defendant for $686.50, entered on the verdict of a jury.
    The facts sufficiently appear in the opinion.

      F. B. Van Vleck, attorney, and B. F. Blair, of counsel for appellant, cited:
    On the measure of damages, Hubbell v. Meigs, 50 N. Y. 480-491, and argued that under the rule there laid down, the court improperly excluded evidence offered on behalf of the defendant as to the value of the invention, of the patents, and of the stock at the time of tire sale of the stock, and subsequent thereto, and as to the amount of the capital stock. On the proposition that respondent having elected to affirm the contract, retain the stock and sue for damages, he could recover only “ such damages as he could prove,” Morgan v. Skidmore, 3 Abb. N. C. 106 ; arguing, among other things, “ It is no answer to say that it is difficult, if not impossible, to prove the actual value of the stock of a corporation in the absence of a market value. Plaintiff might have avoided the difficufty by rescinding the contract, returning the stock, and suing for the price paid, and that remedy would have been perfectly adequate. But he chose the other course and must accept its disadvantages.”

      Platt & Bowers, attorneys, and John M. Boioers, of counsel for respondent, argued
    The issues that the plaintiff has to maintain in an action of this kind, as was well stated in the charge of the court below, are as follows : (1). Did the defendant make the representations that he is alleged to have made % (2.) Did the plaintiff buy the stock in reliance on those representations % (3.) Were the representations false and fraudulent % (4.) Was the plaintiff damaged by those representations ? (Hubbell v. Meigs, 50 N. Y. 480 ; Miller v. Barber, 66 Ib. 558 ; Cazeaux v. Mali, 25 Barb. 578 ; approved, Bruff v. Mali, 36 N. Y. 206 ; Yates v. Alden, 41 Barb. 172 ; Wakeman v. Dalley, 44 Ib. 498 ; affirmed, 51 N. Y. 27 ; Painton v. Northern Central Ry., 83 Ib. 7 ; Mason v. Rapelyea, 66 Barb. 180). As to the effect of the decree of the order of sequestration, see Thompson Liability of Stockholders, 388 ; Brower v. Harbeck, 9 N. Y. 589 ; Ferry v. Bank of N. Y., 15 How. Pr. 445 ; §§ 1784 and 1793, Code).
   By the Court.—O’Gorman, J.

This is an action to recover $500 as damages, being the price of twenty shares of the stock of a corporation called the “Double Weaving & Cutting Company,” sold by defendant to the plaintiff.

This sale, the plaintiff claims to have been effected by means of false and fraudulent representations of defendant as to the value of said stock, which was at the time of the purchase, and at all times since then, wholly worthless. The price paid by the plaintiff was $25 for each share. The par value was $100 a share. The sale was made and the money paid on September 14, 1881.

The plaintiff’s evidence as to the making by the defendant of the representations as charged in the complaint, was contradicted by the defendant. Enough of testimony, however, was given on behalf of the plaintiff, if the jury believed it, to sustain his contention on that subject.

The learned trial judge charged the jury, at the request of appellant’s counsel, that the measure of damages was the difference between the price that plaintiff paid for the stock, and its actual value at or about the time when he ascertained that the representations were untrue ; and the jury gave damages for the full amount paid for the stock and interest, finding in effect that the stock was worthless. The evidence introduced by the plaintiff on that subject, was the record of a judgment obtained on July 18, 1883, in favor of the defendant in this action against the said company, for $794.42. On this judgment, execution was issued against the property of the corporation, and returned unsatisfied, followed by a decree of sequestration upon the property of the corporation, and the appointment of a receiver on August 10, 1883. The learned trial judge held that the worthlessness of the stock was proved by this decree, and refused to admit as evidence of value the opinions of witnesses on the subject. These rulings in themselves are correct. The decree of sequestration of the property of a corporation, under sections 1784 and 1793 of the Code, depended on record evidence of its complete inability to pay its debts, and in effect closed the career of the corporation, and its corporate life then came to an end (Eddy v. Co-operative, &c. Association, 3 Civ. Proc. 442).

Another question still remains to be considered, which was raised, although somewhat vaguely, by one of the defendant’s requests to charge. Assuming that the stock was worthless, as claimed by the plaintiff, what sufficient evidence is there that it would have had any value if the facts were as represented by the defendant, or that the non-existence of these facts in any degree, caused the stock to be worthless ? In other words, what evidence is there that plaintiff suffered any damage as the natural and legitimate consequence of the representations made by the defendant ? .

To maintain an action for obtaining money on fraudulent representations, it must be proved by the plaintiff that the person charged made the representations ; that they were false to his knowledge when made ; that the representations related to some substantial circumstance going to the inducement or essence of the bargain—material to the subject of the negotiation, and constituting the very basis of the contract. The representation must relate to facts, not to opinions, and to facts bearing on the subject of the contract, not do those merely collateral and incidental thereto, and the representation must have had a vital bearing and influence on the mind of the party, in inducing him to enter into the contract (Arthur v. Griswold, 55 N. Y. 400 ; Smith v. Countryman, 30 Id. 655).

The plaintiff here does not seek to rescind the contract of sale, nor does he offer to return the shares of stock purchased by him from the defendant. He affirms the contract, and claims to recover the damages resulting from the alleged fraud. In such a case, the recovery is restricted to such damages as he can prove (Morgan v. Skidmore, 3 Abb. N. C. 92). This proof, in my opinion, the plaintiff in the case at bar failed to supply. He was a machinist, and, before purchasing the stock in question, he made a personal examination of the cutting machine, for which the “Double Weaving & Cutting Company ” owned patents, and he was satisfied with its performance. He received from the' defendant a printed prospectus of the company, setting forth that it owned only these patents, and the cutting-machine tools, &c., at their place of business in South Fifth avenue. In the prospectus, reference was made-to a loom, which, it was there stated, did not belong to the company, but could be purchased from the manufacturer in Rhode Island, and would cost but little more than the ordinary loom.

One of the representations alleged to have been made by the defendant, inducing plaintiff to purchase the stock, was this : That the company had orders for five hundred looms at $150 each. The evidence to sustain this charge is insufficient. ■ But if this representation was true, it was immaterial, because7the company did not manufacture these looms, and did not hold out any prospect of any profit from the manufacture of these looms by others, and it is not alleged that defendant represented' that any such profit could accrue to the company therefrom.

The plaintiff testified that he understood the property owned by the company was the patent-right of the invention for cutting goods, and that the plan of the company was to dispose of royalties, sell shop-rights and machines, and that it had no other source of profits. If this representation was made, it could not have been the inducing cause of the plaintiff’s purchase of stock in the company, and there is no evidence that the stock would have been more valuable, if the representation was true, or less valuable because it was false.

The next representations alleged to have been made by defendant, and to be false, were that five cutting machines, at 85,000 each, had been ordered by certain firms named by the defendant, and that a member of one of these firms was a large stockholder in the company.

Assuming that these representations were made as alleged, and were untrue, there is no evidence that, by reason of their falsity, the value of the stock was injuriously affected. They were not material to the substance of the contract, but related to facts only collateral and incidental to it.

The burden of proving damage was on the plaintiff, and he failed to supply such proof. - It was not enough to leave the question to be determined without evidence, and only by the conjecture or surmise of the jury.

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

Sedgwick, Ch. J., concurred.