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lease. Plaintiff was a member of the corporation. In that event the corporation.

the signers do not become liable H. Slurgis, for applts.

individnally. 21 Wend., 101 ; 21

N. Y., 179 ; 75 id. 378 ; 19 Johns., James A. Lynes, for respt.

60; 17 Wend., 40. Held, That defendants having Although, owing to the absence entered into no personal obligation of a corporate seal, the corporation with plaintiff and having con might not have been liable to the tracted in the name of a known technical action of covenant on principal, who would have been the contract, it was liable in an acliable upon the contract if it had tion of assumpsit for the use and been properly executed, are not occupation of the premises, and personally liable to the plaintiff ; plaintiff was thus furnished the that having executed a lease run. only remedy he contemplated at ning to them and their successors the time of making the contract. in office, the interest of the per- 19 Johns., 60. sons named in it would cease upon Plaintiff being a member of the the expiration of their official corporation and liaving contracted terms, and it would then enure to with it in its corporate capacity, the use of the corporation under neither he nor it could have disthe administration of such officers puted its corporate capacity had as should thereafter be elected. the contract been properly ex

In the absence of a personal ecuied. 19 N. Y., 119; 26 id. 78. promise or covenant, one signing It is sufficient for plaintiff's pura contract who therein represents pose that it was a corporation de himself to be the agent of a dis- facto, exercising the powers and closed principal and who assumes functions of a de jure corporation to contract for such principal only and assuming to act as such. cannot be held personally liable The lease in suit was executed upon the covenants contained in by defendants February 5th, 1871, such contract.

and by the mutual consent of them Kiersted v. 0. & A. RR. Co., 69 and plaintiff it was left with one N. Y., 345 ; Briggs v. Partridge, K. to procure the signatures to it 64 id., 357; Taft v. Brewster, 9 of the other parties named therein, Johns., 334; Stone v. Wood, 7 and upon his accomplishing this Cow., 452; Guyon v. Lewis, 7 object he was instructed to deliver Wend., 26, distinguished.

it to the town clerk. It is immaterial that the con- Held, That until this condition tract was sealed or that it was was performed the instrument was signed only by their individual incomplete and unexecuted. 32 names if it appears on the face of N. Y., 445 ;3 Wend., 380; 4 Cranch, the instrument that they con- | 218; 56 N. Y., 67; 28 id., 333. tracted with reference to corporate Judgment of General Term, business, and had authority to affirming judgment for plaintiff, make such contract on behalf of reversed and new trial ordered.

Opinion by Ruger, Ch. J. All certain to control; and did not try concur.

to turn his horse into the open

road as quickly as he should; that NEGLIGENCE. DAMAGES. after pulling his horse's head

around toward the open road the Y. Y. COURT OF APPEALS.

animal *shot off in that direction,'' Tice, respt., v. Munn, applt.

hitting and breaking plaintiff's

carriage, whereby she was injured; Decided Nov. 20, 1883.

defendant then jumped from his In an action for injuries alleged to have been horse, held him by the bridle and caused by defendant's negligence it ap. led him quietly up to the scene of peared that defendant's borse was spirited, the accident. One of plaintiff's nervous and excited; that defendant failed to turn him into the open rond as quickly witnesses swore that immediately as he should and when he did so hit and after the accident defendant said broke plaintiff's carriage injuring her; that “ he had neglected to put on the defendant then returneul with his horse and check-bit ; that his horse was very stated that he couldn't manage his horse, tender-mouthed ; that he couldn't wbich was tender-mouthed and had neg. lected to put on the check-bit that day.

manage his horse which was tenIleld, That a refusal to nonsuit was proper; der-mouthed, and he had neglected that it was possible for the jury from the

to put on the check-bit that day." evidence to infer negligence. A party who has caused an injury by his neg.:

This was denied by defendant. A ligence is liable for the consequences there. motion for a nonsuit was denied of although they are aggravated by the im- and a verdict rendered for plaintiff. perfect bodily condition of the party Robert P. Harlow, for applt. injured.

N. C. Joak, for respt. This action was brought to re- Held, No error; that it was poscurer damages for injuries received sible from the evidence for the through the alleged negligence of jury to infer negligence on the defendant. The injuries com- part of defendant. plained of were received in conse- Defendant asked the court to quence of a collision between de charge that if plaintiff was in an fendant's horse and a buggy in unhealthy and debilitated condiwliich plaintiff was driving in Cen- tion and the injuries were more tral Park. It occurred in day- serious and lasting by reason of light, and both parties were going her bodily condition then defendin the same direction. It appeared | ant is only liable for such consethat defendant's horse was spirited quences of the injury as would and nervous, and had on previous have resulted if she had been occasions tested the skill and cool in good bodily health. There ness of his rider, and on the day was no proof that plaintiff's of the accident was excited by bodily condition was weakened or being out-trotted by plaintiff's imperfect and that her injuries horse and the spatter of the mud were aggravated thereby. Plaindy roads; that defendant had

that defendant had tiff's request was refused and the omitted to use a check-bit more court charged that if by reason of


a delicate condition of health the the city of New York.

She was conseqnences of a negligent injury induced by the false pretenses are more serious, still for those and fraudulent representations of consequences the defendant is lia- one L. to convey said real estate ble, although they are aggravated to his daughter R., by an absolute by the imperfect bodily condition. deed with full covenants, and

Held, That the request to charge R. took possession thereunder. was properly refused as it was a Thereafter R., upon some alleged request to charge upon an abstract consideration passing to her from proposition having no just bearing her father, L., executed to him a on the case ; that the rule laid mortgage for $1,000 on said real down by the judge was correct. estate which was collateral se

Judgment of General Term, curity for the payment of her affirming judgment on verdict for bond for the same amount. Subplaintiff, affirmed.

seqnently L. assigned the bond Opinion by Finch, J. All con- and mortgage to plaintiff, who, as

must be assumed on this appeal,

paid value for the same, acting in ESTOPPEL. FRAUD. good faith with no knowledge of

the fraud upon D. H., or of her N. Y. COURT OF APPEALS.

equities. After the assignment of Simpson, applt., v. Del Hoyo the mortgage R. reconveyed the et al., respts.

land to D. H. In her answer D.

H. sets up as a defense the fraud Decided Dec. 4. 1883.

perpetrated upon her by L. R. Defendant was induced by false representa- was in possession at the time the

tions of one L. to convey certain land to mortgage in suit was executed L.'s daughter, who gave a mortgage there

and assigned. on to L., and afterward reconveyed to defendant. Plaintiff purchased the mortgage

Abram Kling, for applt. in good faith and for value. Held, That

John M. Bowers, for respts. plaintiff having bought on the faith and Held, That plaintiff having credit of the mortgagor and being a bona bought the mortgage on the faith fide purchaser, defendant is estopped from

and credit of the mortgagor's denying the title of her grantor and lier right to deal with the property as owner.

title, and being an innocent, bona A fraudulent purchaser of real or personal fide purchaser, D. H., is estopped property may deal with it as the owner,

from denying the title of her and whoever purchases the property or takes a mortgage thereon from him or grantor and her right to deal with under him in good faith in reference thereto the property as owner. 46 N. Y., will be protected against the claim of the 335; 55 id., 41; 64 id., 220. When defrauded vendor.

real or personal property is obReversing S. C., 14 W. Dig., 178.

tained from one by fraud upon This was an action to foreclose the purchase thereof, and the a mortgage. It appeared that in vendor thus intentionally parts October, 1877, D. H., the defend with the title, the vendee can alant, owned certain real estate in ways, by a sale to a bona fide

purchaser for value, give a title by the Court, well founded, and good as against the vendor. may be alleged and adjusted upon

A fraudulent purchaser of real the new trial in case she fails enor personal property obtains legal tirely to defeat plaintiff's morttitle to the property purchased gage. 64 N. Y., 397; 3 Abb. N. C., and may convey a good title to 138; 6 Abb. N. C., 469. any bona fide purchaser from him Judgment of General Term, affor value. He may not only con- tirming judgment for defendants, vey the property, but may deal reversed, and new trial granted. with it as owner and may mort- Opinion by Earl, J.

All congage it, and whoever purchases cur. the property or takes a mortgage thereon from him or under him

FISHERY. in good faith, for value, or deals with him in good faith in refer- N. Y. SUPREME COURT. GENERAL ence thereto, will be protected

TERM. SECOND DEPT. against the claims of the defrauded vendor. The real estate may Thompson, applt.

The People, respts., v. Hugh be conveyed or a mortgage thereon assigned to several successive Decided Sept., 1883. participants in the

fraud or

Chap. 734, Laws of 1868, is valid. The State several successive

mala fide has the power to limit and abridge the purchasers, but the moment rights of its citizens to fish in any of the the real estate mortgage

public waters of the State, and can exercise

such power through the supervisors and reaches the hands of a bona fide

justices of the peace of a town within purchaser for value the rights and

whose limits such waters are situate. equities of the defrauded owner The defendant was indicted and convicted are cut off. 1 Johns. Ch., 213; 3

for a misdemeanor in that he had taken

oysters from and distributed oysters upon id., 129; 9 Paige, 315; 4 Abb.

a certain oyster bed in a channel of Jamaica Ct. App. Dec., 253; 44 N. Y.,

Bay, which oysters had been there planted 371.

by one V., to whom a license had been The trial judge held it was im

granted by the town of Flatlands. Held,

No error. material to determine whether the plaintiff was an innocent purchas- Defendant was indicted for a er of the mortgage for value. misdemeanor under Chap. 734, Held, Error.

Laws of 1868, in that he had taken D. H's. claim to be subrogated oysters from and distributed oysto an interest in the mortgage for ters upon a certain oyster bed in $10,000), which was a lien upon the Pumpkin Patch channel, a part of real estate at the time of the con- Jamaica Bay, which oysters had veyance by her, and until after been planted by one Vreeland to the conveyance to her, for the whom a license had been granted amounts paid by her upon that by the authorities of the town of mortgage in ignorance of plaintiff's Flatlands. The defense was that mortgage, is, upon the facts found the oyster bed was a part of the

Vol. 18.-No. 7.


public domain, being a part of the viduals subject only to the supetide waters of Jamaica Bay; that rior right to use the navigable defendant was raking for clams waters for the purposes of comupon a natural clam bed which

merce and navigation, 1 Wend., existed at that point ; and that he 237; 60 N. Y., 65; while it is only had the right to rake for clams in where it undertakes to grant the the public waters, and that the exclusive right to fisheries discondisturbance of the oysters was a

nected with any right upon or necessary incident to his right to connected with the soil, or in disfish for clams.

regard of the rights of owners of It was conceded that the object the soil, that there appears to be of the proceeding was to deter- / any invasion of private right. mine the validity and force of the Why may not the State, as the license under the act of 1868 and owner of the soil and water, subthe rights of the licensee as against ject to the public right of comthe public. It was admitted that merce and navigation, grant away this oyster bed was within the the whole or any part of its own town of Flatlands, and hence aquatic domain, and if so why within the territory of the State of may it not grant the land without New York. It was not pretended the water, or its rights in the that said town ever obtained any water without the land? This right exclusive right to the fisheries would seem especially plain for the within the waters which lie within purposes of planting trees, erectits territories. There was no evi- ing or extending docks, etc., and dence of any grant to the town why not for planting that kind of and no prescriptive right was product which, although classed claimed in its behalf, and the case, as fish, is, nevertheless, a resident therefore, showed that these waters and

and dependent upon the soil were a part of the navigable tide almost as much as grain sown water within this State.

upon agricultural lands. We canHeld, That the State has power not find the precise point decided to limit or abridge the right of any of an original grant by the State, of its citizens to fish in any of the but it is quite plain that the State public waters in the State. The has steadily, since its organizaright of the king, at common law, tion, made analogous grants of to grant to an individual or to the land under water, and ratified old inhabitants of a town the lands claims of that nature. The authorunder water and the exclusive lity for such acts is too old to be right of fishing in such waters, questioned. If these views be cor60 N. Y., 456, might properly be rect, it would seem to follow that exercised by our State, while we the State might exercise the power find no prohibition or limitation of leasing those lands, and its upon such power. The State rights in the waters, especially for might have ceded the entire land purposes which chiefly affect the and water to the town or to indi. I soil under water. It could cer

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