committee of directors and an advisory and executive committee, neither of which ever held a meeting. In January, 1873, plaintiff's president requested the board of directors to appoint a committee to examine from time to time the bank's financial condition, announcing that he could no longer actively perform the duties of his office. A committee was appointed as requested, and instructed to make an examination "three or four times a year." After this plaintiff's president took no active part in the business of the bank and received no salary as president. Defendant as cashier, with the knowledge, or at least tacit consent of plaintiff's president and directors, discounted certain drafts, the drawers and drawees of which possessed at the time the best commercial credit, but became insolvent before the paper matured. Held, That the parties to the drafts were two firms within the meaning of plaintiff's by-laws; that even if defendant knew that the firms were composed of the same individuals he could not be charged with violating said bylaw. He was not required, where paper was presented for discount having upon it the name of a firm whose business was in a distant place from the one where plaintiff's business was carried on, to ascertain the names of the individuals composing the firm. These drafts came within the meaning of that clause of the National Currency Act, § 29, providing that bona fide bills of exchange drawn upon actual existing values shall not be subject. to the prohibition against banks lending money to a single person or firm in excess of one-tenth part of their capital. It is immaterial whether such bills are accompanied by a specific bill of lading in each case, or are drawn against property previously consigned and existing either in its original form or in the shape of proceeds of sales William F. Cogswell, for applt. Albertus Perry, for respt. Held, That under the circumstances defendant was not liable, no claim being made that there was any want of integrity, judg-in the hands of the consignees. ment or skill on his part. It was also provided by plaintiff's by-laws that the names of two responsible persons should be on all discounted paper, the name of a firm being considered as the name of one person. Certain drafts discounted by defendant were drawn by P. & Co. upon W. & Co., two firms whose members were the same persons but whose business was separate and distinct. Vol. 18-No, 3a. The board of directors passed a resolution forbidding defendant to discount his own notes. He disobeyed and used the proceeds of the notes so discounted by him in speculating in wheat. When this came to the knowledge of the board of directors they discharged defendant. The wheat at that time was lying in store at the place where plaintiff transacted its business. Defendant went to plaintiff's bank and deposited a sum sufficient to take up the notes he had discounted for himself and stated that the deposit was made for that purpose. Plaintiff received the money but refused to deliver up the notes or return the money. The wheat was sold at a profit after this action was commenced. Held, That plaintiff was bound to elect whether it should require the funds realized by defendant by his discounts to be returned, or whether the wheat purchased with such funds should be surrendered to it; that when it accepted the money it surrendered all interest in the wheat and was not entitled to the profits arising from a sale thereof. 1 N. Y., 433; 34 id., 30; 41 id.. 182. The relations existing between a banking corporation and its cashier are like those existing between principal and agent, and the principles governing the disaffirming of unauthorized acts should be those which obtain as between principal and agent. Judgment of General General Term, which affirmed as modified judgment for plaintiff, reversed and new trial ordered. ance of his services as such before § 3296 went into effect is entitled to only $3 per day as compensation, there being no writ ten agreement, etc., notwithstanding the fact that judgment was not entered and the fees taxed until after § 3296, fixing his compensation at $6 per day, went into effect. Appeal by plaintiff from order of the General Term of the Marine Court fixing referee's fees at $6 per day. The reference was commenced in January, 1879, when the provisions of the Code of Procedure were in force, which fixed the compensation of referees at $3 for each day spent in the business of the reference, except where an agreement is made in writing, etc. No such agreement was made in this Judgment was entered February 20, 1883. The clerk taxed the fees as charged by the referee, which was affirmed by the Special Term. The General Term modified the order by reducing said fees to $6 per day. From this order the appeal is taken, appellant claiming that said fees should be taxed under the old Code. case. Malcolm Campbell, for applt. Opinion by Ruger, Ch. J. All Civil Procedure applies to the fees concur. REFEREE'S FEES. N. Y. COMMON PLEAS. TERM. GENERAL of referees, and that where a referee had commenced the performance of his services when § 3296 and title V. of Chapter 21 of said Code took effect, he is entitled only to $3 per day, that being the Henry Green, applt., v. The fee when he commenced his service, Nassau Bank, respt. Decided May 18, 1883. Under 3331, Code of Civil Procedure, a referee who has commenced the perform and not $6 per day under § 3296. Order modified accordingly. Opinion per curiam. STATUTE OF FRAUDS. AT- curred. In reply to which Cook telegraphed to him to discontinue, unless directed to the contrary by TORNEY. N. Y. COMMON PLEAS. GENERAL Mr. Cooper, who was the person TERM. William H. Morgan, respt., V. Lauren C. Woodruff, applt. Decided June 25, 1883. Plaintiff herein, an attorney, was authorized by his client to discontinue without costs a certain action commenced by him, and thereafter made an agreement with defendant herein, who was one of the sureties of defendant in the first action on arrest, that said action should be discontinued, and that defendant herein should pay him $1,000 on account of his costs, and said action was forthwith discontinued. Held, In an action to recover said $1,000, that the agreement was valid, and that it was an original undertaking and not within the Statute of Frauds, and that it was not void as against who employed plaintiff to bring the suit here. Cooper did not direct plaintiff to the contrary, and, on April 11 following, Woodruff, the defendant here, agreed that he would pay plaintiff $1,000 towards plaintiff's costs in the action, which were greater than that amount, if plaintiff would discontinue the suit, which he did, and an order to that effect was entered. Defendant having failed to pay the $1,000 this action was brought, and plaintiff, upon conflicting evidence as to the agreement, obtained a verdict for that amount, upon which judgment was entered. The judgment is claimed to be public policy. Appeal from judgment in favor erroneous upon two grounds. 1st. of plaintiff. Plaintiff was employed by one Cook, of Chicago, the assignee for a bankrupt institution, to bring an action in this State against one Smith to recover $158,601.83. $158,601.83. Smith was arrested in the action and held to bail in $100,000, and the defendant Woodruff and another became his bail. Thereafter the assignee failed to supply his attorney (plaintiff) with funds which he deemed requisite to continue the prosecution of the action. An application was made to increase the security for costs to $1,500. The judge intimated that he would grant the application, but gave plaintiff leave to communicate with his client, who, on the 28th of March, was advised by plaintiff by letter of what had oc That the agreement was to answer for the debt, default or miscarriage of another, and not being in writing was void by statute. 2d. That it was void upon grounds of public policy, being an agreement by plaintiff's attorney upon a consideration paid to him personally by the defendant's bail to discontinue the action. F. J. Fithian and H. Thompson, for applt. L. A. Fuller, for respt. Held, That the agreement was an original and not a collateral undertaking, in which the consideration moved from the promisor, being a benefit or advantage derived by him in being released as bail by the discontinuance of the action. 21 N. Y., 413; 42 N. Y., 243; 22 How., U. S., 28. His Further held, That there was nothing in the agreement making it void on account of public policy. Plaintiff had a claim for costs, for which he would have had a lien upon the judgment if one had been recovered by plaintiff, or for which plaintiff would have been liable to him if he had been defeated in the action. client was released by the discontinuance from the payment of any costs to defendant, and with respect to his liability to plaintiff for costs that liability was diminished to the extent of $1,000. The agreement was beneficial to the client and was in accordance with what the client had previously expressed himself willing to do. 53 N. Y., 621. J., Judgment affirmed. Plaintiff had three contracts with defendant to alter and repair his house. This action was brought to recover for extra work done at his house at defendant's request. The referee to whom the action was referred reported in favor of plaintiff for the value of the extra work and materials, and allowed him interest thereon from the completion of the work. There was evidence justifying the allowance of plaintiff's claim. A plumber was employed by plaintiff to do some of the extra work ordered by defendant, who rendered a bill of items of the work done by him. Plaintiff, with the bill in his hands, while testifying, stated that the articles mentioned in the bill were put in defendant's house by defendant's direction. Plain Opinion by Daly, Ch. J.; Beach, tiff's counsel offered the bill in concurs. evidence. It was objected to as incompetent, immaterial, irrele CONTRACT. EVIDENCE. IN- vant, and as included in the three contracts. The objections were Thomas Young, for applt. Held, That the memorandum was properly received in evidence. Defendant had promised to pay for the extra work when it was finished, and on plaintiff demanding payment he told him to call the Monday after he finished the work and then he would settle with him. He called as requested and told defendant that he had called to settle; defendant replied. Held, That if a presentation of account and demand were necessary to set the interest running upon plaintiff's claim what took place at the interview was sufficient. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Earl, J. All concur. SPECIFIC PERFORMANCE. N. Y. COURT OF APPEALS. Johnson, respt., impl'd, applt. v. Brooks, Decided Oct. 2, 1883. that he would never settle with | A judgment was rendered, requirplaintiff and would resist payment ing B. & M. and the defendant if sued. the Am. Ex. Bank, with whom the securities were deposited when the action was commenced, to transfer to plaintiff certain shares of the capital stock and bonds to the par value of $1,500 of the S. I. C. Mining and Lands Company. The trial court found that when the suit was commenced the bank held enough of such stock and bonds and M. was ready to deliver them to plaintiff, but B. refused.. The court also found that the stock had value, was not easily purchased in open market and that a judgment in damages would be inadequate if plaintiff is entitled to any relief; that on September 28, 1878, B. & M., in Boston, Mass., received from plaintiff a subscription of $3,000, and they were to use so much thereof as should be necessary with other funds in purchasing certain shares and bonds of said company, and from said purchase to hold and deliver to plaintiff 150 shares of such capital stock and bonds to the amount of $1,500 on their face; that plaintiff paid them $3,000 on September 28, 1878, and B. & M. received the same under the terms of said agreement and subscription; that on September 26, 1878, B., in his own name, made an executory contract for the purchase of said stock and bonds at Detroit, paying in part It was afterpayment $5,000. wards agreed that this contract should be carried out and consummated in New York city, and it was consummated on October 5 and the stock and bonds delivered B. & M. received a subscription of $3,000 from plaintiff, which they were to use with other funds in buying stock and bonds of a certain company and for which they were to deliver to him 150 shares of said stock. Plaintiff paid the $3,000. Thereafter B. purchased said stock and bonds, but refused to deliver said shares to plaintiff. In an action for specific performance it was found that the stock was not easily purchaseable and that a judg ment in damages would be an inadequate remedy. Held, That B. held toward plaintiff a fiduciary relation, and that although the contract was not writing, yet as it had been partly performed, B. should fully execute it. To entitle a party to a decree for specific performance it is sufficient that his case is good, his right clear and the remedy at law defective, or its enforcement attended with doubt or difficulty. This was an action in equity to compel the specific performance of a subscription agreement made by defendants B. & M. with plaintiff. |