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erty until the conflicting rights of different claimants to them could be adjudicated, and all that was held was that the plaintiffs were entitled to an injunction until the trial of the action, and whether the action could be maintained was not a point before the court at that time for determination.

That an action cannot be maintained by a creditor to set aside an assignment of his debtor's property as fraudulent until until after judgment has been entered in his favor and execution issued and returned unsatisfied, Code of Civ. Pro., 1871; 19 N. Y., 370; 65 N. Y., 73; 13 Hun, 629; 50 N. Y., 80, or before the return of the execution for the purpose of removing obstructions and setting aside fraudulent dispositions of the debtor's property preventing the execution from being made effectual. 54 N. Y., 125; 87 N. Y., 585. Judgment affirmed.

Opinion by Daniels, J.; Brady, J. concurred. Davis, P. J. con

curred in the result.

STATUTE OF FRAUDS.

VARIANCE.

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

E. L. Doughty et al., respts., v. The Manhattan Brass Co., applt.

Decided Dec. 21, 1883.

A series of letters between plaintiffs and defendants, in the first of which defendants offer to sell hoop brass to plaintiffs for a certain price, in the second of which plaintiffs say, "Please ship us two tons of hoop brass, November 1st; two tons, De.

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cember 1st," and in the third of which defendants write, 'Your order for November and December to hand and booked," con stitute a valid contract under the Statute of Frauds, and said contract is not invalid as not sufficiently describing the article contracted for, although it appears that hoop brass is usually described by its two dimensions of width and thickness, while the only description contained in the plaintiffs letter was the width of the brass desired.

A variance between the complaint and the proof, consisting in an allegation in the complaint of a contract of purchase and sale with a credit of thirty days, while a contract proved does not give credit, is not a material one in an action by the purchaser against the seller for breach of contract in failing to deliver the goods sold.

Appeal from judgment entered at Circuit and from order denying motion for a new trial.

Plaintiffs were in the habit of purchasing hoop brass of defendants for use in their business of manufacturing cedar ware, and in September, 1879, defendants wrote to plaintiffs offering to sell them hoop brass at a certain price for November and December following. In reply, plaintiffs wrote "Please ship us two tons of 1 hoop brass, November 1st; two tons, December 1st," and defendants wrote in answer "Your order for November and December to hand, and booked." Defendants wholly failed to deliver the hoop brass on November and December 1st, and plaintiffs brought this action to recover damages for breach of contract. It was claimed by defendants that the alleged contract was void under the Statute of Frauds on the ground that it did not sufficiently describe the article contracted for; inasmuch as the hoop brass ordered was described

only by its width, 1 inches, while it was usual to describe it not only by its width, but also by its thickness or guage, and that defendants were consequently unable to determine of what guage plaintiffs desired their brass. Defendants

Judgment affirmed.

Opinion by Davis, P. J.; Brady and Daniels, JJ., concurred.

SERVICE OF SUMMONS. CODE, SEC. 1919.

also claimed that there was a fatal N. Y. SUPREME COURT. GENERAL variance between the complaint and the proof, inasmuch as the complaint alleged a contract giving thirty days' credit while the contract proved gave no credit.

Brownell & Lathrop, for applt.
E. More, for respts.

Held, That, read together, the several instruments which were respectively subscribed by the parties made a complete contract for the purchase and sale of four tons of hoop brass, two tons deliverable November 1st, and two December 1st, and the omission to specify the guage desired, at most, only left defendants at liberty to furnish hoop brass of any of the customary guages, and as they furnished none the objection that the guage was not specified was entitled to no weight.

That in the contract proved no credit was given and payment was consequently due upon delivery of the goods and not, as alleged in the complaint, thirty days thereafter, but that under the circumstances the variance was not a material one, inasmuch as defendants were guilty of a breach of the contract by never delivering or offering to deliver the merchandize at all, and never putting themselves in condition to require payment on delivery.

TERM. FIRST DEPT. John F. Hathaway, applt., v. The American Mining Stock Exchange, impld., respt.

Decided Jan. 25, 1884.

In an action against an unincorporated association under § 1919 of the Code, the service of the summons is properly made if made personally upon the president or treasurer, or in the absence of a president or treasurer eo nomine upon a person discharging the duties of president or treasurer under a different name.

The words president and treasurer as used in

1919 of the Code, mean a president or treasurer in the ordinary acceptation of the term-a person discharging the functions and duties of such officers by whatever name called.

Appeal from order setting aside service of summons and complaint.

The service was set aside in this case by the court below, the service having been made upon the chairman of defendant Mining Exchange, the only officers thereof being a chairman and secretary, and the order below is sought to be sustained on the ground that actions can only be maintained against unincorporated voluntary associations under § 1919 of the Code in case they have a president or treasurer, eo nomine.

Royal S. Crane, for applt.
Root & Bartlett, for respt.

Held, That the court below erred in setting aside the service of the

summons and complaint. The person served, though called a chairman or presiding officer instead of president, was really the chief executive officer and president in the common acceptation of the term, as defined by Webster, and the service was properly made upon him.

The word president or treasurer as used in § 1919 of the Code, means a president or treasurer, eo nomine, or persons discharging the ordinary functions and duties of such officers under another

name.

This action was brought by plaintiff, as receiver of a manufacturing corporation, to recover a balance due upon certain shares. of stock of the corporation. It appeared that defendant acquired one hundred shares of said stock, pon which he had paid calls to the amount of $7,500. He was one of the trustees of the company, and had become dissatisfied with its management. most, if not all, the trustees and avowed his determination to instistute proceedings to wind up the company, which was then embar

He talked with

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.

STOCKHOLDERS.

N. Y. COURT OF APPEALS. Billings, recr., applt., v. Robinson, respt.

Decided Jan. 15, 1884.

In actions upon unpaid subscriptions for stock and against assignees of stock not fully paid for courts have respect to the terms of the contract and certificate and the circumstances of the case.

Defendant who held unpaid stock in a corporation became dissatisfied and threatened to bring suit to wind up the company, when

one M. offered to purchase his shares and lend money to the corporation after defendant should resign as trustee. This arrangement was carried out, defendant resigning as trustee and executing a transfer of his shares to M. and surrendering his certificate and the transfer was entered on the company's books. The new board ratified the loan. Held, That defendant was released by the transfer from all further liability on his original subscription and M. substituted in his place.

Affirming S. C., 15 W. Dig., 521.
Vol. 18.-No. 14b.

of the company and offered to purchase defendant's shares. The company then owed about $13,000, and M. and his friends agreed to lend it that amount after the retirement of defendant, and as his transfer to M. was to precede that payment and his entire release from liability, to make him safe M. executed an agreement to indemnify him against any claims of creditors of the company and. against any future calls on the unpaid stock. It was further arranged that good checks for the $13,000 should be placed in defendant's hands at the moment of transfer, to be surrendered as the corporate debt was paid and $8,000 of such checks were in fact handed to the attorney of defendant. He made a transfer to M. in the presence of the trustees of the company and resigned his office as trustee and accepted fifty cents on the dollar in the notes of M.

stock to M. according to all the prescribed forms that was its own fault and not defendant's.

In actions upon unpaid subscriptions for stock and against assignees of stock not fully paid for courts have respect to the terms of the contract and certificate and the circumstances of the case. 26 N. Y., 141.

Judgment of General Term, affirming judgment dismissing complaint, affirmed.

Others of the trustees did the same thing and M.'s friends were put in their places and his control secured. The transfer was entered on the books of the company, defendant's stock account which stood debited with 100 shares being credited with 100 shares transferred to M., and defendant's certificates surrendered to and accepted by the company and attached to the original stubs with the receipt of the company added. The amount sought to be recovered in this action was for calls made subsequent to the transfer, defendant having paid all calls that had been made prior thereto. The receiver was not shown to represent any creditor N. Y. SUPREME COURT. GENERAL having any equities against defendant in virtue of his having been a shareholder. The new board of trustees formally ratified the loan of $13,000 and confessed judgment for that amount to the lenders.

James L. Bishop, for applt.

Joshua M. Van Cott, for respt. Held, That plaintiff could not maintain this action; that defendant was released by his transfer to to M. from any further liabllity upon his original subscription; that there was a valid agreement between defendant and the company by which M. was substituted in his place and stead, 25 Barb., 414; 49 N. Y., 220, and the intent of the parties as indicated by the circumstances and their mutual assent established such a release and substitution.

Also held, As the transfer sufficiently appears on the company's ledger if it did not transfer the

Opinion by Finch, J. All concur.

EVIDENCE.

TERM. FIRST DEPT.
Myra L. Howard, applt. v.
James P. Howard, respt.

Decided Dec. 21, 1883.

For the purpose of impeaching a witness it is

error to admit testimony showing that he had made different statements from those testified to on the trial unless the attention of the witness sought to be impeached has been first called to the place, time and circumstance of making the alleged statement and denied making the same.

Appeal from judgment on referee's report.

Action for divorce on the ground of adultery; defense, a denial of the charges and counterclaim alleging plaintiff had been guilty of adultery.

The referee found that neither plaintiff nor defendant had proved the charges, and awarded judg ment for defendant. On the trial evidence was admitted under objection for the purpose of impeaching one Whitney, one of plaintiff's

witnesses, showing that he had made different statements from that testified to on the trial, without having previously called the attention of the witness, Whitney, to the time, place and circumstance of making the alleged statements. J. Delahunty, for applt. J. H. Whitelegge, for respt. Held, Error; that the attention of the witness, Whitney, should have been called to the time, place and circumstance of making the alleged statements, and having denied the same testimony showing he had made statements different from those sworn to, denied by him, would have been proper. But no such foundation having been laid the testimony admitted for impeaching Whitney of statements made different from those he testified to at the trial was improper.

The evidence was material and prejudicial to plaintiff's case. Judgment reversed and new trial granted.

whom a selection of a receiver of the property of defendant may be made, and the bare fact that a party has nominated the person appointed by the court is not sufficient of itself to justify the court in subsequently removing him of its own motion when no party to the suit objects to his performing the functions of the office and no charges are made against him.

Appeal from order removing a receiver of defendant previously appointed.

On April 28th, 1883, one D. was appointed receiver of the property of defendant on motion of plaintiff as judgment creditor of defendant, and he subsequently qualified as such and entered upon the performance of his duties. Subsequently a motion was made by one M. to vacate the order appointing D. receiver on the ground that he, M., had previously been appointed such receiver by the Court of Common Pleas, and was discharging the duties of that office. D. did not appear upon the argument of this motion, but it was denied, and, after denying this motion the

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

RECEIVERS.

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

D., and appointed one N. receiver of defendant's property. This part of the order was made without notice to, and without the consent or knowledge of D. Subsequently 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.

Decided Dec. 21, 1883.

A receiver cannot properly be removed without notice of the application for removal and an opportunity to be heard in opposition.

There is nothing to prevent the parties to an action from naming suitable persons from

and after the hearing of this motion the court made an order vacating both the appointment of N. and that of D., and appointing one M. receiver.

The court stated in this lastmentioned order that its reason for vacating the appointment of

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