« PreviousContinue »
Held, As we understand it, that far such assignment includes tanthe payments in question were gible personal property situated in that
state, and citizens of the state in which charged to the owner, in said man
the assignment was executed have the right ner, by Merriam & Gregory, and to take advantage of such laws; and, conshe is to be regarded as having sequently, a creditor who is a citizen of paid the claims when such charges
New York has the right to commence an ac
tion in the courts of Pennsylvania and atwere made.
tach personal property situated within Held also, That there having that state belonging to his debtor, who is been no written notice of lien also a citizen of New York, after the exeserved on the owner, and there
cution and delivery by the latter of a gene
ral assignment of which the creditor has being nothing to show that the
no notice, and before the recording of payments in question were not such assignment in the proper county of made in good faith (82 of the Pennsylvania as required by the laws of act, as amended), the owner is
that state to give it effect therein, and thus
acquire a lien prior to that of the assignee. entitled to have the amount of said payments allowed to her in ad- Appeal from a judgment recovdition to the allowance made in ered on the report of a referee. her favor by the County Court;
On March 1, 1881, one W., a and consequently the judgments resident of New York state, exein favor of Funda & Howard, and cuted and delivered to plaintiff a Dodge, Miggs & Co. should be re- general assignment for the benefit versed, there being nothing of the of his creditors, which was recordcontract price left to apply on their ed in the office of the clerk of the claims, and the case should be sent county in which W. resided, on back for new trial as between the following morning. W. had those parties and the owner, costs considerable personal property in of this appeal to abide event. In Pennsylvania, and on the 18th of all other respects the judgment is March, 1881, the assignment was affirmed.
recorded in the proper counties of Opinion by Smith, P. J.; Hard- that state in accordance with in and Macomber, JJ., concur.
a law providing that whenever any non-resident of Pennsylvania
should make an assignment of his ASSIGNMENT FOR CREDIT- property within that state for the ORS. FOREIGN LAW.
benefit of his creditors, such asN. Y. SUPREME COURT. GENERAL signment might be recorded within TERM. FIRST DEPT.
any county in which such proper
ty might be, and should take Lucius B. Warner, assignee, effect from its date, provided that applt., v. Edward S. Jaffray et al., no bona fide purchaser, creditor, respts.
&c., who had previously acquired Decided Aug. 7, 1883.
a lien thereon should be affected
or prejudiced. Defendants who The legislature of any state has the power to make laws regulating the effect of a foreign
were co-partners, residing and carassignment for the benefit of creditors as rying on business in New York, had sold and delivered to W. | Art. 4, § 1; U. S. R. S., 170, $ 905; goods of the value of $60,000 2 Wall., 151; U. S. Const., Art. 4. previous to the assignment, and $ 2. on the 1st of March, 1881, shortly Van Buskirk v. Warren, 2 after the delivery of the assign- | Keyes, 119, not followed. ment, they commenced actions in Judgment affirmed. Pennsylvania courts to recover the Opinion by Daniels, J.; Davis, value of such goods, and obtained P. J., and Brady, J., concur. process of foreign attachment under which Wi's property in that state was attached. Plaintiff CORPORATIONS. VALUE OF thereupon commenced this action
STOCK. to enjoin defendants from prose- N. Y. SUPERIOR COURT. GENERAL cuting the Pennsylvania suits and
TERM. from enforcing the liens obtained by the attachments in such suits,
The Continental Tel. Co., applt., on the ground that defendants, be
v. Alfred Nelson, respt. ing residents and citizens of New i
Decided May 7, 1883. York, had been divested by the assignment of the right to proceed In an action by a corporation against its for
mer president to recover damages for against the property of W. before
wrongfully making a contract on behalf of its seizure under the attachments.
the company with a third party for the It was not claimed that defend- performance of certain labor which was ants had any actual notice of the
paid for at a stipulated price in the stock of
the company at par, it being alleged that assignment at the time the several
the work could have been executed at a attachments were made.
cost to plaintiff of one-half the contract A. J. Vanderpoel, for applt. price, of which defendant was aware, etc., Wm. Allen Butler, for respts.
and there being no proof that the capital
actually owned by the company was of Held, That it was within the
such value that the stock was worth its face power of the Legislature of the
value, lield, That there was no conclusive State of Pennsylvania to make presumption that the stock so claimed to be laws declaring and controlling the
over-issued was worth its par value ; and effect of a foreign assignment, so
that the measure of damages, in case the
action will lie, is the amount of money far as it included tangible personal which plaintiff would have been able to ob. property situated in that state, tain by issuing the said excess of stock in 7 Wall., 139; 81 N. Y., 199 ; 93
case it had not been taken from it through
the contract. U. S., 664; 51 Barb., 352; 24 Hun, 492, and, having done so, defend- Appeal by plaintiff from judgants, although citizens of New ment entered upon verdict of jury York, had a right to take advan- in favor of defendant. tage of such laws, 50 Penn., 230; Plaintiff, a domestic corporation, 84 N. Y., 367 ; 16 W. Dig. 459, claimed that defendant, while its and their proceedings under them president, and as plaintiff's repremust be sustained in the courts of sentative, made a contract with one all other states. U. S. Const., | Middleton to lay certain cables,
etc., for it, at the price of $13,750, able to plaintiff, able to obtain by in plaintiff's stock at par; that issuing the $6,250 in nominal the contract was completed and amount, if they had not been taken the stock delivered to Middleton ; from the company through the that it could have been executed contract. Though under the law at one-half the contract price, it was a duty of the directors not which defendant knew, etc. ; that to issue certificates of stock undefendant
with less real value equal to nominal Middleton through a private agree- value was obtained, it does not ment; and that the contract was
follow that the shares of stock can made with the fraudulent and de- be disposed of at their nominal ceitful purpose on the part of de- value. A corporation owns no fendant to cheat and defraud more or less because of its issuing plaintiff for his own benefit. Judg- or not issuing certificates of shares ment was asked for $7,575 and of stock. The certificate is only costs. The answer, among other evidence that the corporation has matters of defense, contained a parted with a share, or undivided setoff of $1,000. As to the actual part of the property actually ownmarket value of the stock .there ed by the company, with certain was a conflict of testimony; and limitations.
the Before or after this share has jury could pass on its value. There passed into possession of subscriwas no evidence that the capital bers or subsequent parties, there actually owned by plaintiff was of is no conclusive presumption as to such value that the number of its value. 27 Barb., 424; 61 Barb., portions of it that would be rep- 579 ; 2 Keyes, 673. resented by the certificate claimed Judgment affirmed, with costs. to be illegally issued would be an Opinion by Sedgwick, Ch. J. ; amount equal to par value.
O'Gorman and Ingraham, JJ., Plaintiff contended that in esti
concur. mating the damages suffered by it "the stock so illegally issued, HIGHWAYS. JURY. viz. : one-half of the amount given N.Y.SUPREME COURT. GENERAL Middleton, must be estimated at
TERM, FOURTH DEPT. its nominal or par value," and plaintiff's exceptions were based
William J. Johnson, Comr. of thereon.
Highways, respt., v. John Love. Harry Wilber, for applt.
less, applt. Man & Parsons, for respt.
Decided June, 1883. Held, That the damage to plain- The objects pointed out by the record at each tiff on the assumption that it had end of the line of a highway will direct a cause of action for pecuniary
the course of the line.
. compensation would be the amount It is a bad practice for a party to take juryAppeal from judgment of terminus and the school house at County Court, affirming judgment the eastern, direct the course of in justice's court upon a verdict the line, 1 Cow., 605; 4 Wend., declaring that defendant had en- 507; 46 Barb., 518; and the line croached upon a certain highway. thus marked out is to be taken as
men home to dinner with him ; but under of money it would be, probably, the circumstances of this case, such conusing that word in a sense favor- duct is not ground for reversal.
Vol. 18.-No. 3.
In 1843, a record was made of the center line, there being nothing the highway, as follows: “Begin- in the record to indicate the conning at the southeast corner of lot trary. 5 Wend., 580 ; 13 id., 310. 55, thence east 57 chains and 70 The lot corner is on the line of links to the Hortontown school great lots, and that it was intendhouse, and that the breadth of said , ed to be in the center line of the road is three rods.”: The location highway cannot be doubted. It of the southeast corner of lot 55 is is not so with the school house, undisputed. The contention re- because at the time of the record lates to the course which should the statute was in force prohibitbe run from that point, to ascertain ing the laying out of a road the location of the center line ac- through any building without the cording to the record. The line con- owner's consent. 1 R. S., 514, tended for by plaintiff and adopt- $ 57.. The undisputed evidence ed by the jury is not a due east is that at that time the school course as indicated by the com- house stood flush with the south pass at the present day, but is the line of the highway as then opened line of lots as run in the original and used. It is apparent that the survey of great lots made about north line of the school house was 1790 of that section of the coun- designated as the exterior south try, which line was a true east line line of the highway, and of course as indicated by the magnetic needle the eastern terminus of the center at that time. Defendant contends line was at a point a rod and a half that, as the record makes no refer- north of the school house. A line ence to that line, its adoption is drawn from that point on the east unwarranted, and the true line to the said lot corner on the west, should run due east from the said is identical with the line of lots as starting point according to the originally surveyed. magnetic needle at the date of the At the trial before the justice a record.
recess was taken for dinner, and Louis Marshall, for applt. there being no public house in the C. W. Avery, for respt.
vicinity the jurors had to get their Held, That if the words “due dinners at private houses, and two east stood alone they would call of them dined at plaintiff's house. for a line running due east accord. The evidence justifies the concluing to the course of the magnetic sion that nothing was said to them needle at the date of the record. or in their hearing, and nothing But the objects pointed out by the was done in their presence, while record at each end of the line, to at plaintiff's house, calculated to wit : The lot corner at the western influence their decision. Whether
penalties under Laws 1862, Ch. It
the dinners were furnished gratu- It appears that defendant, who itously does not appear.
was in possession as tenant of the Held, That the practice is not to bulkhead and piers on the westbe recommended, and in all cases erly side of West street, between every reasonable effort ought to be Barclay street and Park place, in made to avoid it. Whenever there New York city, was engaged, in is ground to suppose that such ac- July, 1880, in repairing the plank tion on the part of a juror has in- ing of such piers; and that deHuenced his decision to the pre- fendant's servants, on the evening judice of the opposite party, the of the 3rd of July, when they Verdict should be set aside. But ceased working for the day, left a in this case the verdict is so fully large opening in such planking in supported by the evidence that it a portion of the pier immediately is hardly reasonable to assume adjoining the street, and which that the conduct of the jurors in was generally used for street purthe respect pointed out resulted to poses, unguarded except by a bardefendant's prejudice.
rier, which at some places was not Judgment affirmed, with costs. more than eighteen inches high, and We decline to order judgment for upon which no light was placed.
It also appeared that on the 4th of 243, § 3, as suggested by respond. July, 1880, plaintiff's intestate ent's counsel.
visited Coney Island, and returned Opinion by Smith, P. J.; Har- from that place on a boat arriving din and Haight, JJ., concur.
at Pier No. 1, in New York city,
late that night; that he was last NEGLIGENCE.
seen alive on such boat a short
time before its landing by some N. Y. SUPREME COURT. GENERAL friends to whom he expressed a TERM. FIRST DEPT.
desire to catch a certain ferry boat Susannah L. Dorland, adm’rx, leaving the foot of Chambers applt., v. The N. Y. C. & H. R. street a short time after the landRR. Co., respt.
ing of the Coney Island boat, so Decided Aug. 7, 1883.
that he might reach his home in
Passaic, N. J., that night; that he In an action to recover damages for the death
was sober at that time, and that of plaintiff's intestate caused by the negligence of defendant, where the only proof
on the morning of the 5th of July on the part of plaintiff is that defendant his dead body was found in the made a large hole in a public highway and water at the bottom of the hole in left the same improperly guarded at night, defendant's pier. and that the next morning the dead body of plaintiff's intestate, who had been seen late
After proving the above facts the night before in a sober condition, was
plaintiff closed her case, and the found in such hole, the complaint should court thereupon dismissed her be dismissed.
complaint. Appeal from judgment dismis- Culver & Betis, for applt. sing plaintiff's complaint.
Frank Loomis, for respt.