Page images
PDF
EPUB

to relatives of plaintiff who were assisting in supporting her and paying for her education. Plaintiff was informed of these promises of W. by her relatives, and in reliance upon them made promises to different persons who were taking care of and providing for her, some of which were made after she was twenty-one years of age, that whatever they did for her she would when able repay. The referee found that over $20,000 had been expended by plaintiff's relatives in maintaining and educating her. W. died without having paid any of the expenses thus incurred and without having made provision for them or plaintiff in his will. This action was brought to recover the amount thus expended. A judgment was rendered dismissing the complaint, which was reversed by the General Term, and a new trial ordered, the General Term holding that plaintiff was entitled to recover up to the date of W.'s death.

Robert S. Green, for applts.

William H. Arnoux, for respt. Held, That the promise made by W. to provide for the plaintiff and pay those who had maintained and educated her were valid and could be enforced; that the evidence showed an agreement made upon a valuable consideration. Wend., 405; 25 id., 619; 5 Esp., 131; 1 C. & P., 269; 30 L. J. (Eq.), 606; 78 N. Y., 371; 47 Ga., 445; 6 C. B., N. S., 223; 2 E. & E., 730.

19

An undertaking by a putative father to support his bastard, or pay a sum of money in consideraVol. 18.-No. 21b.

tion of such support being furnished by another, though that other person is the mother of the child, is valid.

Plaintiff's relatives having been induced to assume the burden of expense for those things W. solicited them to supply to plaintiff by his avowed intention to repay them, their conduct was a sufficient acceptance of his undertaking and completed the contract and made it binding. L. R., 19 Eq., 178; 74 N. Y., 15; Doctor and Student, Dialogue 2, Ch. 24; 7 N. Y., 349; 83 id., 14; 8 id., 228; 82 id., 503. It makes no difference that the promise is to make compensation by will. Johns., 199; 13 id., 379.

3

Also held, That plaintiff was the proper party to bring the action and she properly brought it in her own name, the contract in suit having been made for her benefit as its object. 2 Levinz, 210; Cowper, 437-443; 1 Johns., 139; 3 Johns. Ch., 254; 7 id., 56; 2 Den., 45; 17 How. Pr., 289; 24 N. Y., 178; 93 U. S. (3 Otto), 143.

Judgment of General Term, reversing judgment dismissing complaint and granting new trial, affirmed, and judgment absolute on stipulation.

Opinion by Danforth, J. All concur, except Andrews, J., dissenting.

[blocks in formation]

Where the notice of appeal from a final judg|quired deposited with the Su

ment contains no notice of intention to review an interlocutory order made in the

case, the order is to be taken as determining the rights of the parties as far as it goes. The receiver of an insolvent insurance company, under authority of the court, made an arrangement with a foreign company to reinsure all claims. A policy holder, who retained his policy, paid one or more premiums to the foreign company and then ceased to pay. Held, That the policy holder by such payments did not lose his recourse against the remaining assets of the original insurer; that such payments did not amount to a recognition of the foreign company as

insurer or an assent to the contract between the two companies.

An appeal was taken in this case from the final judgment, and no notice is given of an intention to review an interlocutory order made in the case.

Raphael J. Moses, Jr. for applts. Wm. H. Ingersoll, for respt. Held, That the interlocutory order must be taken, so far as it goes, as the settled law of the case, and as determining the rights of the parties. Code of Civil Proc., S$ 1301, 1316.

This action was commenced on a death claim arising under the following circumstances. On November 15, 1872, the National Life Insurance Company of New York issued a policy, as of that date, on the surrender of one of a prior date, on the life of R., plaintiff's husband, for $5,000 for the benefit of plaintiff. On April 1, 1875, while the policy was in full force and the company in the hands of a receiver, the insured died. It appeared

that the New York company was incorporated under the general insurance Act of 1853 and its amendments, and as re

perintendent of the Insurance Department as a security for the benefit of the policy holders $100,000, before commencing business. On October 21, 1873, B. was appointed a receiver of said company, and on December 8, 1873, B., having been authorized by the court, entered into a contract with the American National Life and Trust company of New Haven, in consideration of certain assets turned over to it by said receiver, to assume all the liabilities of the New York company upon outstanding contracts. No notice was given by said receiver to the regular policy claimants against the fund of the New York company until September, 1874. The New Haven company failed in September, 1878. A policy holder in the New York company, who retained his policy therein, paid one or more premiums thereon to the New Haven company and then ceased to pay. It was claimed that this policy holder lost his recourse against the remaining assets of the New York company by reason of such payments.

Held, That these payments did not amount to a recognition of the New Haven company as insurer, or an assent to the contract between the two companies. There was no necessity to pay premiums upon the policy in order to preserve its claim against the assets of the insolvent company. That remained so long as the policy holder kept his policy without transfer, surrender or cancellation. This policy holder was entitled to

share in the guaranty fund of the New York company, and by stopping his payments to the New Haven company lost only such right against it as the premiums paid to it by him might have given. Judgment of General Term, affirming judgment for plaintiff, affirmed.

$1,000,000. By section six the company was subjected to all the restrictions and liabilities contained in chapter 18, part 1, of the Revised Statutes, and the liability of stockholders to creditors was absolute and unconditional to an amount equal to the amount of stock held by them respectively,

Opinion by Finch, J. All con- and was not made to depend on

cur.

CORPORATIONS.

N. Y. COURT OF APPEALS.

the fact whether the capital stock had been paid and the filing of a certificate of such payment. By Chapter 203 of the Laws of 1873, the corporate name of the company was changed and its stockholders

Sutherland, applt., v. Olcott et made liable for its debts to the al., exrs., respts.

Decided Feb. 26, 1884.

The Albany Iron Manufacturing Co., under Laws of 1867, Chap. 401, had the power to

increase its capital from $300,000 to $1,000,000. In 1872 it passed a resolution to increase its capital stock to $600,000. No amount in excess of $489,500 was ever subscribed. By the act of 1873, the Albany Iron Mfg. Co. became the Olcott Iron Mfg.

Co. In 1875 the Olcott Mfg. Co. rescinded the resolution to increase the capital stock to $600,000, and fixed and limited the capital stock at $489,500. Held, That the attempt to reduce the capital stock was a nullity and was not authorized; that the act of 1873 conferred no new power on the company to change or alter the capital stock. Reversing S. C., 16 W. Dig., 281.

This action was brought to recover of defendants' testator a debt due from a manufacturing company of which he was a stockholder. By its charter the capital stock of said company was fixed at $300,000, Laws 1867, Chap. 401, §2, with power to be exercised by the directors, if the business of the company required it, to increase the same to a sum not exceeding

amount of stock held by them,

66

until the whole amount of corporate stock fixed and limited by such company shall have been paid in." The judgment upon which this action was brought was recovered April 17, 1876, upon two notes of the company dated Oct. 25, 1876, given for work, &c., under a contract made in May, 1875. A resolution passed Sept. 11, 1872, declared that the capital stock of the company "be and the same is hereby increased to $600,000.” On May 10, 1875, the directors passed a resolution in form fixing and limiting the capital stock at $489,500, and rescinding all resolutions heretofore adopted fixing or limiting the capital stock, and on July 15, 1875, a certificate was filed in the county clerk's office that the whole capital stock so fixed and limited had been fully paid in. No power to reduce the stock is given by the act of 1867 or that of 1873. Olin A. Martin, for applt. G. L. Stedman, for respts.

Held, That the legal effect of! the resolution of Sept. 11, 1872, was to increase the capital stock to $600,000, and the attempt to reduce the capital stock was a nullity and was not authorized by the original charter or the act of 1873.

The words "fixed and limited," as used in the first section of the act of 1873, refer primarily to an existing situation, and that act conferred no new power upon the company to change or alter the capital stock. It cannot be supposed that the legislature intended to put it in the power of the company to reduce its capital stock without making provision for existing creditors. Such an implication cannot be indulged to repeal the positive prohibition of the Revised Statutes. 6 Pick., 23; L. R., 3 Exch., 42; L. R., 2 Ch. App. Cas., 714; 4 Q. B., 430; Morowitz on Corp., § 230; 13 Met.,314; 1 R. S., 602, § 2; id., 600, § 5; 93 N. Y., 426.

Judgment of General Term, affirming judgment dismissing complaint, reversed, and new trial granted.

Opinion by Andrews, J. All concur, except Miller and Danforth, JJ., not voting.

RES JUDICATA.

N. Y. COURT OF APPEALS.

terminations, whether made by courts in ordinary actions or in summary or special proceedings, or by judicial officers in matters properly submitted for their determination.

The trust in question in an action to construe a will, had been held to be wholly void in a prior action of partition to which all the legatees, devisees, heirs, and next of kin of testator were parties defendant. Held, That the former adjudication was a bar. Reversing S. C., 17 W. Dig., 74.

W., plaintiff's testator, provided by his will: 1st. That his property should, within two years after his decease, be converted into first class bonds and mortgages on New York city property. 2d. That his executors should pay to L. $1,000. 3d. That one-half the legal interest from his property should be paid to his father so long as he lived. 4th. The other half to be paid to his mother so long as she lived. 5th. On the death of his father his share of the interest should be divided among his brother F. and his sisters E. and A. share and share alike for life. 6th. On his mother's death, her share of the interest should be divided. between his said brother and sisters share and share alike for life. 7th. On the death of the testator's father, mother, and brother and sisters, he provided that "the entire estate held in trust for my hereinafter named trustees and executors to be paid to my dear nephew H., merchant, if of age. If at such time he should be a minor, the property to be held in

Leavitt, exr., respt., v. Wolcott, trust for him until he arrives at his

impld., applt.

Decided Feb. 26, 1884.

The rule of res adjudicata applies not only to judgments of courts, but to all judicial de.

majority." It was conceded that the property assumed to be disposed of by the wil! was either personal property or under the doc

all the parties to this action, the referee decided that the testator's will attempted to create a trust to continue more than two lives in being at the time of the testator's death, which is repugnant to the statutes and void, and that as the same cannot be sustained in part it must wholly fail. The guardian for the testator's nephew H. filed exceptions to this finding. Upon a motion afterwards for final judgment and confirmation of the referee's report all the parties to this action had notice and appeared by counsel and were heard, and the Court granted the motion, disallowed the exceptions and ordered the proceeds of the share belonging to the testator to be paid to his heirs at law as in cases of intestacy. This judgment remains unreversed.

trine of equitable conversion tator. On a hearing, attended by should be so treated in applying the rules relating to the power of suspending the absolute ownership of such property. It was decided by the court below that the seventh clause of the will devising the property to the testator's nephew on the death of the life tenants named therein was void, as it unduly suspended the absolute ownership of the property. This part of the judgment was not appealed from and no question has been raised on this appeal as to its correctness. Prior to the testator's death an action was brought by H. and wife, in the Supreme Court, to secure the partition or sale of certain premises in New York city in which the testator was alleged to have an interest as tenant in common with other parties to said action. After his death all the persons named as devisees or legatees in his will, and each of his heirs and next of kin, being the same persons named as parties in this action, were by supplemental summons and complaint brought in and made parties defendant to that action. They each appeared therein by their respective attorneys. On October 21, 1881, an interlocutory judgment was rendered in that action providing for a sale, and an order was made appointing a referee to ascertain the rights and interest of the testator's father, the testator, his executors, his mother, said nephew and his brother and sisters "in and to the share of the real estate described in the said decree, and thereby adjudged to be owned by" said tes

Dexter A. Hawkins, for applt. James M. Varnum, for respt. Held, That the former adjudication in the action for partition was a bar to this action.

When a matter in controversy has been submitted to a competent judicial tribunal, its decision thereon is final between the parties until reversed, set aside or vacated. The rule of res adjudicata applies not only to the judgments of courts, but to all judicial determinations, whether made by courts in ordinary actions, or in summary or special proceedings, or by judicial officers in matters properly submitted for their determination. 66 N. Y., 391; 80 id., 127; 32 id., 281; 2 Den., 33.

As to all matters of fact or law

« PreviousContinue »