not lay them as corrupt.

T. A. Read, for applts.

J. I. Curtis, for the People. Held, That, assuming the count of the indictment charging a corrupt act was good, error was committed in the exclusion of evidence. The defendants would be entitled to show that they acted in good faith. It was error to exclude evidence that defendants consulted a lawyer as to their right to reduce an assessment without swearing the applicant, one of the the acts charged; also that the defendant assessor believed he had a right to reduce the assessment. Thus if the indictment or any count was for corruption in office there was error in excluding evidence; for the People claim that though acting judicially the assessors could be indicted for corruption. 50 Barb., 573; 15 Wend.,

277.

But the People claim that in refusing to examine Wheeler when he applied to have his assessment reduced the defendants acted ministerially and that for such refusal or neglect they are liable without regard to intent, 1 Denio., 457, and they rely on 2 R. S., m. p. 696, § 38. This section applies only to cases where no special provision is made for punishment. By 1 R. S., m. p. 394, § 29, a special provision is made for the punishment of an assessor for wilful refusal or neglect, viz.: a penalty of $50, and to this extent only in such case is he liable; for every wilful refusal or neglect is not corrupt. See 1 Denio, 457. We do not de

real estate at less than its full value that this would amount to a a neglect under § 29, supra. That section is evidently intended not as a penalty for misconduct, but for neglect to act at all.

Judgment and conviction reversed and new trial granted.

Opinion by Learned, P. J.; Boardman and Bockes, JJ., concur.

APPEAL. PRACTICE. EVIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

Mary Doyle, applt., v. The Recorder Printing Co. of Fayetteville, respt.

Decided Oct., 1883.

There being a question whether two suits were brought on one cause of action, and the judge below having given credence to declarations of plaintiff's attorney as represented in the moving affidavits, rather than to the averments in the opposing affidavits, the court sees no reason to disturb his conclusions; and objections to the nature of evidence cannot be raised, for the first time, on appeal.

Appeal from order of Special Term, staying plaintiff's proceedings herein until defendant's costs in a former action, begun by the same plaintiff, are paid.

The former action having been dismissed before service of complaint therein, a question arose upon the motion which resulted in the order now appealed from, whether the two suits were brought upon the same cause of action. The complaint in the present case

building, as aforesaid, thereon, the title should revert to the grantor. About the time of the execution of the deed there was built on the lot a good and sufficient church, which the grantees and their successors kept so erected to the time the action was begun. Before commencement of the action, the trustees, under a county court order, contracted to sell the building to defendant Smith, to be removed from the lot, for $400, which they proposed to apply on the cost of a new church recently built by them on another lot in the same village. The Special Term vacated the injunction order on the grounds that the society held the title to the lot upon a condition subsequent, only, for breach of which the remedy is reentry or ejectment, and that plaintiff's interest as a pew-holder does not entitle him to maintain the action.

George T. Spencer, for applt. George B. Bradley, for respts. Held, We concur in the views of Special Term; but the opinion of the judge below does not advert to the suggestion of appellant's counsel, that the grantees, by accepting the deed, covenanted to keep the building erected on the lot conveyed. The keeping of a building erected was made a condition. upon which the society's title depended, but there was no covenant on its part to perform such condition. Otherwise, the society would be bound to rebuild as often as the building should be destroyed by fire, or other means, and such ob

N. Y. COURT OF APPEALS. Brisbane, applt., v. The D., L. & W. RR. Co., respt.

Decided Dec. 4, 1883.

Defendant issued certain stock transferable only on presentation of the certificate to one B., who transferred the same to plaintiff and afterwards died. Thereafter the stock was transferred to B.'s administrator, although he did not produce the certificate. In an action to compel the issue of scrip and the payment of dividends declared thereon, Held, That defendant in making the transfer took the risk of the administrator being the owner, and as it appeared that he was not, defendant was liable to plaintiff for the stock; but that the dividends were payable to the person in whose name the stock stood on the books of the company in the absence of notice of a change of title or a transfer, and the failure of the administrator to produce the certificate was not such a notice as to subject his right to collect the dividends to suspicion, and hence defendant was not liable for dividends paid to such administrator. Affirming S. C., 13 W. Dig., 184.

This action was brought to compel defendant to issue scrip for

tiff, and to pay him certain dividends which had been declared thereon. It appeared that a certificate for such shares had been issued by defendant to the administrator of B., notwithstanding the fact that no scrip was produced showing that B. held the stock at the time of his death. Plaintiff produced a transfer of the shares to him by B. By the terms of the original certificate to B. it was only transferable upon production of the same. The proof showed that B. did not own this stock at the time of his death. The dividends claimed were from time to time paid to the administrator of B. No notice had been given by plaintiff to defendant in regard to the stock belonging to him.

A. N. Weller, for applt. Hamilton Odell, for respt. Held, That the certificate to B. not having been produced when the stock was transferred to his administrator, defendant took the risk of the administrator being the owner thereof, and, as the proof showed he was not, defendant was properly held liable for the stock to plaintiff to whom the scrip had been transferred. The dividends were properly payable to the person in whose name on the books of the company the stock stood, or his legal representatives, in the absence of notice of a change of the title or a transfer of the stock, or such knowledge or information as would put it upon inquiry as to the ownership thereof. The failure of the ad

cate was not such a notice, at the time the dividends were received, as subjected the right to collect the same to suspicion or as required the defendant to make inquiry thereto.

Judgment of General Term, affirming judgment of Special Term, affirmed.

Opinion by Miller, J.

cur.

INTEREST.

All con

N. Y. COURT OF APPEALS. Sanders, respt., v. The L. S. & M. S. RR. Co., applt.

Decided Dec. 14, 1883.

In a case where interest is only allowed a damages the legal rate must govern. The action was for dividends which defendant unjustly withheld from plaintiff. Held, That interest was allowable solely as damages and should be computed at 7 per cent. to Jan. 1, 1880, and at 6 per cent. from that time.

This was an appeal from a judgment of General Term, affirming a judgment for plaintiff for $5,240.10 and $429.46 costs; the sum of $5,240.10 being made up of a claim for arrears of dividends, $2,436.67 principal, and interest from Aug. 1, 1867, to date of decision, January 7, 1881, at the rate of seven per cent. Defendant's counsel claims that the interest should have been computed at the legal rate, to wit: at seven per cent. to January 1, 1880, and then at six per cent. from that time to January 7, 1881.

Edward S. Rapallo, for applt. Birdseye, Cloyd & Bayliss, for respt.