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Held, That the demurrer was CORPORATIONS. CON. not good ; that said act of 1869 is TEMPT. DISTRINGAS. permissive not compulsory. The N. Y. SUPREME COURT. GENERAL supposed moral coercion upon a TERM. FOURTH DEPT. . person accused of crime to offer

William H. Hillis, respt., v. The himself as a witness by reason of Peekskill Savings Bank, impld., the adverse inference which might

applt. be drawn from his omission to tes.

Decided Oct., 1883. tify when presumedly all the facts

Where a corporation refuses to obey a decree are known to him is not compul.

or judgment obtained against it the court sion exe: cised through the pro- has power to authorize a writ of distringas cess of the Courts or through laws to bring the corporation before it to answer acting directly upon the party and

the contempt alleged to have been com

mitted. To authorize the issuing of such has no reference to an indirect and

writ it is not necessary to prove conclu-argumentative pressure such as is sively that the corporation has been guilty claimed is exerted by the act of

of contempt. 1869. The policy or propriety of Appeal from order authorizing a law is a legislative and not a ju. a writ of distringas to compel the dicial question.

bank to appear and answer for an The prisoner's counsel moved alleged contempt. that the court direct an acquittal The judgment in this action dion the ground that the matters on rected the bank, within thirty days which the perjury was assigned after the service of copy of judgwere immaterial.

ment, to deliver up certain town Held, That althongh the false bonds to be cancelled. This the testimony did not bear directly bank failed to do and also declined upon the main issue in the trial to surrender said bonds on defor forgery, but only upon the mand, whereupon the order in credit of the witness, who gave question was made, authorizing material evidence on the merits on the writ to issue unless the bank that trial, it was relevant as going procured a stay of proceedings to the credit of a witness who has pending appeal from judgment. given material evidence, because it It was claimed in opposition to the helps the jury to determine the application for the writ that the main issue. 9 Cox C. C., 501 ; 3 C. judgment was wrong and that the & K., 26; Arch. Cr. Pr., 817. bank had parted with the bonds False swearing is perjury when pending the action. ever the testimony is relevant to the L. W. Thayer and I. S. Johncase, although it may not directly son, for applt. bear upon the issue to be found. W. F. Cogswell, for respt.

Judgment of General Term, af- Held, That the Special Term firming judgment of conviction, did not exceed its power or disaffirmed.

cretion in regard to the applicaOpinion by Andrews, J. All tion. Whether defendant has concur.

been guilty of the alleged con

sue.

tempt need not be conclusively de. | In the absence of any allegation in the comtermined when an application is

plaint that plaintiff is a non-resident of the

State and therefore disqualified to sue a made for a writ of distringas.

foreign corporation by reason of § 1780 of When a decree or judgment is the Code, such non-residency will not be aspronounced against a corporation sumed in support of a demurrer on the which it refuses to obey the party

ground of want of plaintiff's capacity to who avers that the corporation is to give a stockholder a standing to maintain in contempt may have the writ of

an action to recover money improperly distringas to bring it before the paid by the corporation of which he is a court, and after that, if no satis- stockholder, he must show a request made

to the corporation to sue and a refusal. factory answer is given to the

The statement of a request and neglect to alleged contempt, the court may

sue, without specifying the length of time order a sequestration to enforce such neglect continued, is insufficient. the performance of the decree or

There must be a direct refusal, or at Icast order of the court. 1 Barb. Ch.

facts from which the court can legally infer

a refusal. There must be a clear default or Pr., 443.

breach of duty on the part of the corporaSection 14 of the Code defines tion. what contempts may be punished Appeal from interlocutory judg. civilly and enumerates cases in ment overruling demurrer to the which the remedy applies. In the complaint. 8th subd. it declares that such This action is brought by a power exists, "in any other case stockholder of the Old Dominion when an attachment or any other Steamship Co. of Delaware, on proceeding to punish for contempt behalf of himself and others simihas been usually adopted and larly situated, to recover back practiced in a court of record to moneys paid under a contract, Ex. enforce a civil remedy of a party A, and also to recover back monto an action

or to protect eys paid under a contract, Ex. B, the rights of a party.” When and to restrain the payment of any the contumacious party is brought further sum under Ex. B. The before the court the practice in complaint showed that by Ex. B, certain cases is prescribed by title entered into Jan. 21, 1874, the 3, Chap. 17, of the Code.

Lorillard SS. Co. and J. LorilOrder affirmed.

lard, its president, agreed among Opinion by Hardin, J.; Smith, other things to discontinue the P. J., and Barker, J., concur. business of running steamboats

between New York and Norfolk, PLEADING. STOCKHOLD.

and other Southern ports, on payERS.

ment by the Old Dominion SteamN. Y. SUPREME Court. GENERAL ship Co.,of New York, of a certain

The contract TERM.

sum each month. FIRST DEPT.

was entered into

into between the John A. Leslie, respt., v. Jacob Lorillard Co. and Lorillard, its Lorillard et al., applts.

president, and the Old Dominion Decided Dec. 21, 1883.

Steamship Co. of N. Y. Subse.

*

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quently the Old Dominion Steam account of the provision of $ 1780 ship Co. of Delaware was estab- of the Code. It should be shown lished, which succeeded to the on the face of the complaint that rights, business, and assumed the plaintiff is a non-resident. The liabilities of the Old Dominion first ground of demarrer is inSteamship Co. of New York. valid. Plaintiff is a stockholder only in With respect to

the second the Delaware corporation. By the ground of demurrer, to wit. : the agreement, Ex. B, of Oct. 29, misjoinder of causes of action, we 1878, Ex. A was rescinded and a think it is well taken. Plaintiff new agreement entered into where asserts no right except as a stockby the Old Dominion Steamship holder of the Delaware corporaCo. of Delaware agrees to pay the tion. Contract A was made beLorillard Steamship Co. certain tween the Lorillard Co., Lorillard, large sums of money so long as it its president, and the Old Dominshould discontinue business be- ion Steamship Co. of New York. tween New York and Norfolk and Under the contract considerable other Southern ports and no oppo- sums of money are alleged to have sition line to the Delaware corpo- been paid by the Old Dominion ration existed. This suit seeks to Steamship Co. of New York to the annul Ex. B and recover back defendant Lorillard from time to moneys paid under it and also to time as reqnired by its terms. The recover back moneys paid by the cause of action that arose, if any, Old Dominion Steamship Co. of on that contract, and because of New York under Ex. A, of which those payments, was in favor of plaintiff was never a stockholder. the Old Dominion Steamship Co. Plaintiff brings this suit by virtue of New York, or its stockholders, of his being a stockholder in the and not the Old Dominion SteamDelaware corporation. Defend ship Co. of Delaware, or any of its ants demurred on the ground of stockholders. There is no allegawant of plaintiff's capacity to tion that the Delaware corporation sue ; also on the ground of mis- paid any moneys required to be joinder of causes of action ; also paid by contract A. It is true on the ground that the com- there is an allegation that the complaint does not state the canse pany, after its organization, sucof action. Other facts sufficiently ceeded to and entered upon the

same business of transportation Asa Bird Gardiner, for applts. which had been theretofore conThomas S. Moore, for respt.

ducted by the Old Dominion Held, That in the absence of Steamship Co. of New York, and any allegation of plaintiff's non- became vested with the property residency it will not be assumed and subject to the liability of the in support of the demurrer that contracts of said last named comhe is a non-resident, and for that pany. But that is by no means reason Jacks capacity to sue on equivalent to showing that the Del

Vol. 18.-No. 13.

appear below.

aware Co. made any payments or defendant has neglected to bring did any acts which either they or such action is not equivalent to an plaintiff as stockholder of the allegation that the defendant has company is entitled to have de refused to do so. It is not stated clared void in this action. By the how long such neglect continued, complaint it appears that the Del- and there is nothing from which aware corporation repudiated Ex. the court can lawfully infer that A and denied any liability under such neglect is eqnivalent to a reit. Exhibit B seems to be an in- fusal. 18 How., U. S., 231 ; 69 N. dependent obligation. The al- | Y., 71. leged cause of action arising out Judgment reversed, and judgof the transactions of the parties ment ordered for defendants on deto Ex. A is improperly united in murrer, with leave to plaintiff to this action with the cause of action amend on the usual terms. under Exhibit B, because the two Opinion by Davis, P. J.; Danalleged causes of action are not so iels, J., concurs. connected that plaintiff can enforce both by this action, unless it can be answered that the failure

COSTS. of plaintiff to allege any cause of

N. Y. SUPREME COURT. GENERAL action in him arising under agree

TERM. FIRST DEPT. ment A of the complaint has only the effect to show that the com- Stephen Tunstall, respt., v. Walplaint contains but a single cause ter W. Winton, applt. of action, to wit : that which arises

Decided Dec. 21, 1883. under Ex. B. At all events it is clear that if plaintiff expects to

When the plaintiff deposits $250 with the

clerk of the court in lieu of an undertaking establish any cause of action aris.

on an order of arrest and the order of arrest ing under the agreement A he

granted in the action is finally vacated by must so far amend his complaint a decision of the Court of Appeals, the deas to show that the corporation of

fendant is immediately entitled to an order which he is a stockholder recog

requiring the clerk to pay over to him the

costs awarded him on the vacation of the nized and performed that agree

order of arrest, and cannot be obliged to ment by the payment of moneys wait until the termination of the action in in which it and he had some in- order that such costs may be set off against terest.

possible costs recovered by the plaintiff in

the final judgment. With respect to the ground of demurrer that the complaint does Appeal from an order denying a not state facts sufficient to consti- motion made by defendant for the tute a cause of action, we think payment of certain costs out of a that is well taken. To give a deposit made by plaintiff in lieu stockholder the right to bring an of an undertaking on obtaining an action he must aver that the cor- order of arrest. poration has refused to bring the The order of arrest in this action action. The allegation that the was finally vacated by the Court of Appeals. Therenpon defendant be delayed until the action should moved that the clerk of the court be tried and determined. This was be ordered to pay his costs out of an incidental portion of the conthe sum deposited with him as troversy not dependent upon the above stated. This motion was issues which might be finally deopposed by plaintiff on the ground cided in plaintiff's favor, and, as that the case was approaching the decision carried with it the trial; tbat defendant was insolvent, costs incurred in vacating an unand that plaintiff seemed likely to authorized order of arrest, defendrecover a verdict and therefore ant was entitled to their immediate the discretion of the court was in- payment out of this deposit. voked to delay the decision of the Order reversed and motion motion until after the trial and granted. verdict with a view of setting off Opinion by Daniels, J.; Davis, the costs claimed by defendant | P. J., and Brady, J., concur. against plaintiff's probable lecovery.

COSTS. The motion was denied and defendant appealed.

N.Y. SUPREME COURT. GENERAL Benjamin F. Sawyer, for applt.

TERM FIRST DEPT. Edward P. Wilder, for respt.

Held, That the deposit made by John Fischer, applt., v. George plaintiff was liable to, and affected F. Langbein et al., respts. by, the same contingencies as the

Decided Dec. 21, 1883. undertaking provided for would have been if that had been given, When two defendants defend an action sepand by such an undertaking the arately and judgment is entered in their parties subscribing it would be favor, and from such judgment the plaintiff

appeals by serving a single notice of apcome liable to defendant for the

peal, and upon such appeal the judgment is payment of such costs either in

affirmed “with costs and disbursements of the event of judgment being re- the appeal to the defendants, respondents," covered in his favor, or if it should

the defendants are entitled to but a single

bill of costs on appeal. finally be decided that plaintiff was not entitled to the order of Appeal from an order denying arrest. The latter contingency a motion for the readjustment of had been determined in defend costs. ant's favor, and thereupon plain

Plaintiffs were nonsnited upon tiff had become liable to pay to the trial of this action, and dedefendant the costs the latter had fendants, having answered and sustained by reason of the arrest, defended separately, were allowed and the deposit was specially separate bills of costs. Plaintiff charged with making that pay appealed to the General Term ment.

from the judgment, and, upon That plaintiff had no right to such appeal, both defendants were claim that such payment should represented by the same counsel

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