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