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erty until the conflicting rights of cember 1st," and in the third of which dedifferent claimants to them could

fendants write, “Your order for November

and December to hand and booked," con be adjudicated, and all that was

stitute a valid contract under the Statute of held was that the plaintiffs were Frauds, and said contract is not invalid as entitled to an injunction until the not sufficiently describing the article contrial of the action, and whether

tracted for, although it appears that hoop

brass is usually described by its two dithe action could be maintained

mensions of width and thickness, while the was not a point before the court only description contained in the plaintiffs at that time for determination. letter was the width of the brass desired. That an action cannot be main

A variance between the complaint and the

proof, consisting in an allegation in the tained by a creditor to set aside an

complaint of a contract of purchase and assignment of his debtor's prop- sale with a credit of thirty days, wnile a erty as fraudulent until after contract proved does not give credit, is not judgment has been entered in his

a material one in an action by the purchaser

against the seller for breach of contract in favor and execution issued and

sailing to deliver the goods sold. returned unsatisfied, Code of Civ. Pro., $ 1871 ; 19 N. Y., 370; 65 Appeal from judgment entered N. Y., 73; 13 Hun, 629; 50 N. Y., at Circuit and from order denying 80, or before the return of the ex

motion for a new trial. ecution for the purpose of remov

Plaintiffs were in the habit of ing obstructions and setting aside purchasing hoop brass of defendfraudulent dispositions of the ants for use in their business of debtor's property preventing the manufacturing cedar ware, and in execution from being made effect. September, 1879, defendants wrote ual. 54 N. Y., 125; 87 N. Y., 585. to plaintiffs offering to sell them Judgment affirmed.

hoop brass at a certain price for Opinion by Daniels, J.; Brady, November and December followJ. concurred. Davis, P. J. con

ing. In reply, plaintiffs wrote curred in the result.

“Please ship us two tons of 11 hoop brass, November 1st; two

tons, December let," and defendSTATUTE OF FRAUDS. ants wrote in answer - Your orVARIANCE.

der for November and December

to hand, and booked." DefendN. Y. SUPREME COURT. GENERAL

ants wholly failed to deliver the TERM. FIRST DEPT.

hoop brass on November and DeE. L. Doughty et al., respts., v.

cember 1st, and plaintiffs brought The Manhattan Brass Co., applt.

this action to recover damages for

breach of contract. It was claimed Decided Dec. 21, 1883.

by defendants that the alleged conA series of letters between plaintiffs and de- tract was void under the Statute of

fendants, in the first of which defendants Frauds on the ground that it did offer to sell hoop brass to plaintiffs for a

not sufficiently describe the article certain price, in the second of which plain

* Please ship us two tons of f} contracted for; inasmuch as the hoop brass, November 1st ; two tons, De hoop brass ordered was described only by its width, # inches, while Judgment affirmed. it was usual to describe it not only Opinion by Davis, P.J.; Brady by its width, but also by its thick and Daniels, JJ., concurred. ness or guage, and that defendants were consequently unable to de

tiffs say,

SERVICE OF SUMMONS. termine of what guage plaintiffs

CODE, SEC. 1919. desired their brass. Defendants also claimed that there was a fata] N. Y. SUPREME COURT. GENERAL variance between the complaint

TERM. FIRST DEPT. and the proof, inasmuch as the John F. Hathaway, applt., v. complaint alleged a contract giving The American Mining Stock Exthirty days' credit while the con- change, impld., respt. tract proved gave no credit.

Decided Jan. 25, 1884. Brownell & Lathrop, for applt.

In an action against an unincorporated associE. More, for respts.

ation under $ 1919 of the Code, the service

of the summons is properly made if made Held, That, read together, the

personally upon the president or treasurer, several instruments which were

or in the absence of a president or treasurer respectively subscribed by the par- eo nomine upon a person discharging the ties made a complete contract for duties of president or treasurer under a dif

ferent name. the purchase and sale of four tons

The words president and treasurer as used in of 1 hoop brass, two tons deliv

$ 1919 of the Code, mean a president or erable November 1st, and two De- treasurer in the ordinary acceptation of the cember 1st, and the omission to term——person discharging the functions specify the guage desired, at most,

and duties of such officers by whatever

name called. only left defendants at liberty to furnish hoop brass of any of the Appeal from order setting aside customary guages, and as they fur- service of summons and complaint. nished none the objection that the The service was set aside in guage was not specified was en- this case by the court below, the titled to no weight.

service having been made upon the That in the contract proved no chairman of defendant Mining Excredit was given and payment was change, the only officers thereof consequently due upon delivery being a chairman and secretary, of the goods and not, as alleged in and the order below is sought to the complaint, thirty days there be sustained on the ground that after, but that under the circum- actions can only be maintained stances the variance was not a ma- against unincorporated voluntary terial one, inasmuch as defendants associations under $ 1919 of the were guilty of a breach of the con- Code in case they have a president tract by never delivering or offer- or treasurer, eo nomine. ing to deliver the merchandize at Royal S. Crane, for applt. all, and never putting themselves Root & Bartlett, for respt. in condition to require payment Held, That the court below erred on delivery.

in setting aside the service of the

upon him.

summons and complaint. The This action was brought by person served, though called a plaintiff, as receiver of a manufacchairman or presiding officer in- turing corporation, to recover a stead of president, was really the balance due upon certain shares chief executive officer and presi- of stock of the corporation. It dent in the common acceptation of appeared that defendant acquired the term, as defined by Webster, one hundred shares of said stock, and the service was properly made upon which he had paid calls to

the amount of $7,500. He was one The word president or treasurer of the trustees of the company, as used in 1919 of the Code, and had become dissatisfied with means a president or treasurer, its management.

He talked with eo nomine, or persons discharging most, if not all, the trustees and the ordinary functions and duties avowed his determination to instiof such officers under another stute proceedings to wind up the name.

company, which was then embar. Order reversed, with $10 costs rassed for lack of money, unless and disbursements.

some arrangement could be made. Opinion by Brady, J.; Daniels, One M. desired to obtain control J., concurs.

of the company and offered to

purchase defendant's shares. The STOCKHOLDERS.

company then owed about $13,000,

and M. and his friends agreed to N. Y. COURT OF APPEALS.

lend it that amount after the reBillings, recr., applt., v. Robin. tirement of defendant, and as his son, respt.

transfer to M. was to precede that

payment and his entire release Decided Jan. 15, 1884.

from liability, to make him safe In actions upon unpaid subscriptions for M. executed an agreement to instock and against assignees of stock not demnify him against any claims fully paid for courts have respect to the

of creditors of the company and terms of the contract and certificate and the circumstances of the case.

against any future calls on the Defendant who held unpaid stock in a corpo- unpaid stock. It was further arration became dissatisfied and threatened to ranged that good checks for the bring suit to wind up the company, when one M. offered to purchase his shares and $13,000 should be placed in de lend money to the corporation after defend- fendant's hands at the moment of ant should resign as trustee. This arrange-transfer, to be surrendered as the ment was carried out, defendant resigning corporate debt was paid and $8,000 as trustee and executing a transfer of his

of such checks were in fact handed shares to M. and surrendering his certificate and the transfer was entered on the com

to the attorney of defendant. He pany's books. The new board ratified the made a transfer to M. in the presloan. Held, That defendant was released ence of the trustees of the comby the transfer from all further liability on bis original subscription and M. substituted pany and resigned his office as in his place.

trustee and accepted fifty cents on Affirming S. C., 15 W. Dig., 521.

the dollar in the notes of M. Vol. 18.-No. 14b.


Others of the trustees did the same stock to M. according to all the thing and M.'s friends were put in prescribed forms that was its own their places and his control secured. fault and not defendant's. The transfer was entered on the In actions upon unpaid subscripbooks of the company, defendant's tions for stock and against assig. stock account which stood debited nees of stock not fully paid for with 100 shares being credited with courts have respect to the terms 100 shares transferred to M., and of the contract and certificate and defendant's certificates siirren- the circumstances of the case. 26 dered to and accepted by the com- N. Y., 141. pany and attached to the original Judgment of General Term, stubs with the receipt of the com- affirming judgment dismissing pany added. The amount sought complaint, affirmed. to be recovered in this action was

Opinion by Finch, J. All confor calls made subsequent to the cur. transfer, defendant having paid all calls that had been made prior

EVIDENCE. thereto. The receiver was not shown to represent any creditor N. Y. SUPREME Court. GENERAL

TERM. FIRST DEPT. having any equities against defendant in virtue of his having Myra L. Howard, applt. been a

shareholder. The new James P. Howard, respt. board of trustees formally ratified

Decided Dec. 21, 1883. the loan of $13,000 and confessed judgment for that amount to the For the purpose of impeaching a witness it is lenders.

error to admit testimony showing that he

had made different statements from those James L. Bishop, for applt.

testified to on the trial unless the attention Joshua M. Van Cott, for respt. of the witness sought to be impeached has

Held, That plaintiff could not been first called to the place, time and cirmaintain this action ; that defend.

cumstance of making the alleged statement

and denied making the same. ant was released by his transfer to to M. from any further liabllity Appeal from judgment on refupon his original subscription ; eree's report. that there was a valid agreement

Action for divorce or the ground between defendant and the com- of adultery; defense, a denial of pany by which M. was substituted the charges and counterclaim alin his place and stead, 25 Barb., leging plaintiff had been guilty of 414 ; 49 N. Y., 220, and the intent adultery. of the parties as indicated by the The referee found that neither circumstances and their mutual plaintiff nor defendant had proved assent established such a release the charges, and awarded judg. and substitution.

ment for defendant. On the trial Also held, As the transfer suffi- evidence was admitted under ob. ciently appears on the company's jection for the purpose of impeachledger if it did not transfer the King one Whitney, one of plaintiff's

witnesses, showing that he had whom a selection of a receiver of the made different statements from

property of defendant may be made, and

the bare fact that a party has nominated that testified to on the trial, with

the person appointed by the court is not out having previously called the sufficient of itself to justify the court in attention of the witness, Whitney,

subsequently removing him of its own moto the time, place and circumstance tion when no party to the suit objects to

his performing the functions of the oflice of making the alleged statements.

and no charges are made against him. J. Delahunty, for applt. J. H. Whitelegge, for respt. Appeal from order removing a

Held, Error ; that the attention receiver of defendant previously of the witness, Whitney, should appointed. have been called to the time, On April 28th, 1883, one D. was place and circumstance of making appointed receiver of the property the alleged statements, and having of defendanton motion of plaintiff denied the same testimony show- as judgment creditor of defendant, ing he had made statements diffe- and he subsequently qualitied as rent from those sworn to, denied such and entered upon the perby him, would have been proper. formance of his duties. Subse.

But no such foundation having quently a motion was made by one been laid the testimony admitted M. to vacate the order appointing for impeaching Whitney of state- D. receiver on the ground that he, ments made different from those M., had previously been appointed he testified to at the trial was im- such receiver by the Court of Comproper.

mon Pleas, and was discharging The evidence was material and the duties of that office. D. did prejudicial to plaintiff's case. not appear upon the argument of

Judgment reversed and new trial this motion, but it was denied, granted.

and, after denying this motion the Opinion by Davis, P. J.; Brady court, in the same order, removed and Daniels, JJ. concur.

D., and appointed one N. receiver of defendant's property.

This part of the order was made withRECEIVERS.

out notice to, and without the N. Y. SUPREME COURT. GENERAL

consent or knowledge of D. SubseTERM. FIRST DEPT.

quently D. moved to vacate so

much of the last-mentioned order Henry Bruns, applt., v. The as removed him and appointed N., Stewart Mfg. Co., respt.

and after the hearing of this motion

the court made an order vacating Decided Dec. 21, 1883.

both the appointment of N. and A receiver cannot properly be removed with- that of D., and appointing one M. out notice of the application for removal receiver. and an opportunity to be heard in oppo

The court stated in this lastsition. There is nothing to prevent the parties to an

mentioned order that its reason action from naming suitable persons from for vacating the appointment of

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