18. Plaintiff gave defendant a warranty deed of certain premises under an agreement by which it was to be held as security and the property reconveyed on payment of such sums as might be loaned and an amount to be agreed upon. Defendant caused the premises to be conveyed to his wife and re- fused to convey to plaintiff on tender and demand. In an equity action brought by plaintiff the court directed a reconveyance on payment of a specified sum. In this action for damages for failure to reconvey plaintiff recovered as damages the depre- ciation in the value of the land and counsel fees incurred in the equity action. Held, Error; that these were not the necessary results of defendant's acts; that the dam- ages might properly be for the value of the use of the land and for waste or trespass, but not its depreciation.—Marvin v. Pren- tice, 338.
19. Where by the terms of a contract of sale defendant agreed to pay plaintiff $5,000 of the purchase money on the execution and delivery of conveyances of plaintiff's half interest in certain foreign patents, and the balance within one year, the making by de- fendant of the first payment without in- sisting on the delivery of the conveyances does not preclude him from insisting on the provisions of the agreement giving him one year from the execution and delivery of the conveyances before the maturity of the final payment, and suit brought in less than one year from the tender of the convey. ances for final payment is prematurely brought.-Hubbell v. Lorillard, 363.
20. A contract for building a vault provided half should be paid when the foundation was laid and the balance on completion of the work to defendant's satisfaction. builder having refused to make a substitu- tion of material claimed by defendant to be necessary according to contract, defendant made it himself and charged it to the builder. He made payments after the first half was paid, offered to pay what he con- ceded to be due and expressed himself satisfied after the work was completed. Held, That as there had been a substantial performance of the contract payment became due on the completion of the work to defendant's satisfaction; that defend- ant was estopped by his payments and offer to pay from claiming that nothing more than the first half was due, and that plain- tiffs were entitled to recover the balance of the contract price, less the amount paid by defendant for the substitution of material. -McKenzie et al. v. Decker, 481.
21. An undertaking by a putative father to support his bastard, or pay a sum of money in consideration of such support being fur- nished by another, is valid even though that other is the mother of the child or the promise is to make compensation by will.- Todd v. Weber et al., 496.
22. Where the child's maternal relatives, in- duced by such promise to repay, furnish the support, etc., requested by the father, their conduct is a sufficient consideration for his promise and makes the contract bind- ing.-Id.
23. An action upon such promise or under- taking may be brought by the child in her own name.Id.
24. Plaintiff and defendant entered into an agreement for the sale and purchase of a quantity of domestic sardines with labels on the boxes in a French style to contain a statement that the contents had been packed in France in olive oil by persons named thereon. It appeared that French sardines are worth about 50 per cent. more than do- mestic sardines, on account of quality, etc., and that domestic sardines are taken and packed in Maine. Held, In an action brought after tender of said goods and a refusal to receive them, that the contract was against public policy and could not be enforced, although there be no direct evi- dence to show that defendants, the whole- salers, intended to sell to consumers. — Materne et al. v. Horwitz et al., 522.
SEE BANKS, 6; EXECUTORS, &c., 11; FRAUD, 14-16; INTEREST, 3; MORTGAGE, I; N. Y. CITY, 2; SPECIFIC PERFORMANCE; TRUSTS, 2.
1. Conversion by one tenant in common can be established without proof of a sale, de- struction or loss of the joint property.- Patten v. Neal, 154.
2. C. & Co., cotton brokers, falsely repre- sented that they had orders from certain manufacturing companies to buy cotton, and proposed to purchase plaintiff's cotton, which offer was accepted, and plaintiffs sold 100 bales, as they supposed, to said compa- nies on a credit. Bought and sold notes were delivered, as usual, and the bales were delivered to C. & Co., to be shipped to said companies. C. & Co. stored the bales. raised money on warehouse receipt issued to P. & Co., and afterwards absconded. P. & Co. sold the bales to R. & Co., who paid for them at market rates and stored them with defendant. Held, That C. & Co. ob- tained possession by larceny, and that defendant, although an innocent purchaser, obtained no title as against the true owner. -Hentz et al. v. Miller, 224.
3. To entitle a plaintiff to recover in an ac- tion for conversion of moneys entrusted to defendant for investment he must show that defendant made no investment, but ap- propriated the moneys to his own use; or if he in form made an investment that it was not a bona fide one, but a mere sham.- King v. Mackellar, 396.
4. The defendant in such an action is entitled to show the value of the mortgaged prem- ises at the time the mortgage taken by him on the investment was executed.-Id.
5. Where notes made for a certain purpose are placed in the hands of a custodian to carry out that purpose, and he with full knowledge allows them to be diverted from the purpose intended, he becomes liable to the maker in damages for the conversion of them.-Hynes v. Patterson et al, 421.
6. If it is agreed that the maker of the accom- modation notes is to receive a certain amount as compensation for the loan of his credit, he is not obliged to return it before commencing an action for conversion of the notes.-Id.
1. A cause of action against a corporation for a breach of contract accruing prior to the appointment of a receiver pendente lite in an action to dissolve said corporation can- not be enforced against the receiver until the corporation is adjudged dissolved; and an order permitting such receiver so to be sued is not an adjudication as to his liabil- ity.-Fleischauer v. Dittenhoefer, 18.
2. In an action by a corporation against its former 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 conclu- sive 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.-The Continental Tel. Co. v. Nelson, 48.
3. A mere diminution of the capital stock of a corporation pursuant to Chap. 264, Laws of 1878, does not authorize the distribu- tion among the stockholders of a sum equal to the difference between the original amount of capital and the reduced amount, even where it appears that the original amount was actually paid in. The surplus which a corporation is at liberty to dis- tribute under that act is to be ascertained in each case and depends upon the result of an examination into its affairs.-Strong v. The Brooklyn Crosstown RR. Co., 63.
4. Whenever by means of earnings, sales of property or otherwise, the corporation be- comes possessed of funds in excess of the reduced amount of its capital it can dis tribute that excess without violating any law. -Id.
4. A stockholder seeking to restrain a dis- tribution of surplus is bound to make out a clear case of violation of corporate power to his injury.-Id.
6. The provisions of S$ 647 and 649 of the Code do not apply to the shares of stock of a foreign corporation.—Plimpton et al. v. Bigelow, 85.
7. A corporation has its domicile and resi- dence alone within the bounds of the sov- ereignty which created it, and its stock can only be present for the purpose of judicial proceedings at the place of residence of its owner or that of the corporation.—Id.
8. Defendant issued certain stock transfera- ble only on presentation of the certificate to one B., who transferred the same to plain- tiff and afterwards died. Thereafter the stock was transferred to B.'s administra- tor, although he did not produce the cer- tificate. In an action to compel the issue of scrip and the payment of dividends de- clared thereon, Held, That defendant in making the transfer took the risk of the ad- ministrator being the owner, and as it ap- peared that he was not defendant was liable to plaintiff for the stock; but that the divi- dends were payable to the person in whose name the stock stood on the books of the company in the absence of a notice of a change of title or a transfer, and the failure of the administrator to produce the certi- cate was not such a notice as to subject his right to collect the dividends to suspicion, and hence defendant was not liable for divi- dends paid to such administrator.-Brisbane v. The D., L. & W. RR. Co., 159.
9. The defendant company had authority un- der Chap. 319, Laws of 1875, to increase its capital stock, and the necessary action to make a legal increase having been taken it was authorized under Chap. 568, Laws of 1870, to purchase the property, franchises, &c., of the A. & P. and Am. Union Tel. Cos., the three companies not owning pre- cisely parallel lines or lines running between exactly the same places.- Williams v. The W. U. Tel Co., 177.
10. Section 2, of Chap. 18, part 1, tit. 4, R. S., refers to the property capital of a corpora- tion and not to its share capital. A stock dividend representing investments of sur- plus earnings is not a violation of that sec- tion.-Id.
11. When a corporation has a surplus the question whether a dividend shall be made, its amount, &c., rests in the discretion of the directors, uncontrollable by the courts. --Id.
12. A stockholder who comes into court al- leging that an increase of stock was un- authorized by the articles of association has the burden to prove and establish that fact.-Id.
13. Where a corporation refuses to obey a decree or judgment obtained against it the court has power to authorize a writ of distringas to bring the corporation before it to answer the contempt alleged to have been committed. To authorize the issuing of such writ it is not necessary to prove conclusively that the corporation has been guilty of contempt -Hillis v. The Peekskill Savings Bank, 287.
14. To give a stockholder a standing to main- tain an action to recover money improperly paid by the corporation of which he is a stockholder, he must show a request made to the corporation to sue and a refusal. The statement of a request and neglect to sue, without specifying the length of time such neglect continued, is insufficient. There must be a direct refusal, or at least facts from which the court can legally infer a refusal. There must be a clear default or breach of duty on the part of the corpora- tion.-Leslie v. Lorillard et al., 288.
15. To render a transfer by a corporation in- valid as having been made in contemplation of insolvency it is not sufficient that insol- vency and the act co-exist; it must have been made because of existing or anticipated insolvency or it is not prohibited.—Pauld- ing v. The Chrome Steel Co, et al., 323.
16. In determining whether such a transfer is fraudulent the date of the agreement pur- suant to which it was made, and not the day when the conveyance was in fact exe- cuted, is to be regarded. The question de- pends on what was passing in the minds of the company's officers when the transfer was executed.-Id.
17. 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.-Billings v. Rob- inson, 329.
18. Defendant, who held unpaid stock in a corporation, became dissatisfied and threat- ened 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 rati- fied the loan. Held, That defendant was released by the transfer from all further liability on his original subscription and M. substituted in his place.-Id
19. What the complaint avers that defendant is a foreign corporation incorporated under the laws of the Kingdom of Denmark, and the defendant answers and denies on information and belief that it is a foreign corporation as is alleged in the complaint, no issue is made requiring plaintiff to prove the corporate existence of the defend- ant, as 1776 of the Code requires an af- firmative denial of the fact that the defend- ant is a corporation -Bengstein v. The Thingvalla SS. Co., 411.
20. In the absence of a by-law fixing the salary of an officer of a corporation, or an express promise to pay, no compensation for his services upon quantum meruit can be recovered by such officer.-Smith v. The L. I. RR. Co., 476.
21. Where a party accepts an office to which no salary is attached, and allows himself to be re-elected for several successive terms during which he serves without demanding or receiving any salary or having one flxed, Held, That such circumstances rebut any presumption that compensation for his ser- vices was intended or expected.--Id.
22. 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 resolu- tion 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 cap- ital 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.--Sutherland v. Olcott et al., 499.
23. A manufacturing corporation increased its capital without complying with the pro- visions of law in relation to publishing notice of the meeting or filing certificate. The increased stock was issued though never fully paid in, and the holders thereof shared the dividends and acted as holders of legal stock. Five years later a certifi- cate was filed stating the capital at the amount as increased and that it was actu- ally paid in. Held, That the certificate was sufficient to exonorate the holders of the original stock, but was not conclusive as to creditors that the increased stock had been paid in; that the holders of such stock were estopped from setting up the informalities in its issue and that the debts provable under $24 of the act of 1848 should be assessed against the holders of the increased stock only.-Veeder v. Judson, 515.
TEREST, 2; LEASE, 7; PLEADING, 9, 21- 23; SALE, 2.
1. The Court has inherent power to award to a guardian ad litem in an equity action a reasonable compensation for the services in fact performed by him to be paid out of the subject matter of the action. This power is independent of the Code of Civ. Pro., and such award should not be in- cluded in the sum given to a party as an additional allowance under the provisions of the Code regulating that subject.— Weed et al. v. Paine et al., 20.
2. When both parties are successful in an ac- tion named in §§ 3253-4 of the Code of Civ. Pro. and on that account are each entitled to recover costs separately, additional al- lowances, under the above sections, may be made to the amount of $2,000 on a side or $4,000 in the aggregate.-Id.
3. It seems that in an action to partition real estate both parties are not entitled to costs if actual partition of the property is made, but that they are so entitled if the property is sold.-Id.
4. A demurrer is a defense within the mean- ing of § 3,253 of the Code.-The N. Y. Ele- vated RR. Co. v. Harrold et al., 150.
5. One A., a mortgagee, was made a defend- ant in an action to set off certain judgments obtained by plaintiff against the mortgagors against judgments obtained by them against plaintiff and to have said judgments satis- fied out of the mortgaged property. A. succeeded and obtained judgment that the land be sold, his debt paid therefrom and the surplus, if any, applied on plaintiff's claims. Held, That an extra allowance to A. could only be computed on the amount of plaintiff's claim and not on the amount of the mortgage.-The Remington Paper Co. v. O'Dougherty et al., 190.
6. Section 779 of the Code of Civ. Pro., pro- viding for the set-off of motion or interlo- cutory costs, was designed only to provide for the collection or set-off of such costs by the party entitled to receive them, and does not sanction a motion for such set-off made by the opposite party.-Tunstall v. Winton, 205.
7. Costs awarded to the defendant on the va- cation of an order of arrest belong to his attorney, and cannot be set off on the plain- tiff's motion against the general costs awarded to the plaintiff in a judgment in his favor in the action.-Id.
8. On appeal from a taxation of costs only the papers used before the clerk can be considered.-The Remington Paper Co. v. O'Brien, 209.
9. Where a bill of costs contained an item for searches, accompanied by an affidavit in the usual form and that the case was one of foreclosure and the search was procured for use in drawing the decree and to file, and no affidavit or paper disputing the facts is presented, the clerk is justified in allowing the claim for searches.-Id.
10. When the plaintiff deposits $250 with the clerk of the court in lieu of an undertaking on an order of arrest and the order of ar- rest granted in the action is finally vacated by a decision of the Court of Appeals, the defendant is immediately entitled to an order requiring the clerk to pay over to him the costs awarded him on the vacation of the order of arrest, and cannot be obliged to wait until the termination of the action in order that such costs may be set off against possible costs recovered by the plaintiff in the final judgment.-Tunstall v. Winton, 290.
11. When two defendants defend an action separately and judgment is entered in their favor, and from such judgment the plain- tiff appeals by serving a single notice of ap- peal, and upon such appeal the judgment is affirmed with costs and disbursements of the appeal to the defendants, respond- ents," the defendants are entitled to but a single bill of costs on appeal.-Fischer v. Langbein et al., 291.
12. When on the trial of an issue of fact be- fore a referee judgment is rendered against one defendant but in favor of another, the question of awarding costs to the successful defendant is not left to the discretion of the referee, under § 1018 of the Code of Civ. Pro., but that matter is committed to the discretion of the Court by § 3229, and the proper practice is for the successful defend- ant to move the Court for an order award- ing him costs.-The N. Y. Elevated RR. Co. v. The Phila. Architectural Iron Co. et al., 325.
13. Costs should be disposed of in the litiga- tion in which they are incurred and are not recoverable as damages in another action.- Marvin v Prentice, 338.
14. Section 3245 of the Code, declaring that costs cannot be awarded against a munici- pal corporation unless the claim is first presented to its chief fiscal officer, &c., does not apply to an action begun in jus- tices court, even though such action be ap- pealed to the County Court and there be re- tried.-Marsh v. The Village of Lansing- burgh, 386.
15. Where judgment is awarded in favor of plaintiff against one defendant and in favor of another defendant dismissing the com- plaint as to him, costs to the successful de- fendant under § 3229 are in the discretion of the court where such successful defend- ant did not unite in the answer and was
not united in interest. When the success- ful defendant unites with his co-defendant in the answer, though he was not united in interest, he is not entitled to costs.- Frazer et al. v. Hunt et al., 390.
16. Upon the decision of an appeal by de- fendant to the Court of Appeals from a judgment granting a new trial the remit- titur from the Court of Appeals granted judgment absolute to plaintiff on defend- ant's stipulation, with costs. Held, That "with costs in the remittitur means the whole costs of the action, and not merely costs in the Court of Appeals. -Jermain v. The L. S. & M. S. RR. Co., 403.
17. The Court will not reverse or modify an order granting an extra allowance except in cases of abuse of discretion by the Court below.-Id.
18. A motion for additional security for costs given by a non-residant plaintiff is not too late after the action has been tried, the com- plaint dismissed, and the exceptions or- dered to be heard at the General Term in the first instance, and if, on such a motion, the security is shown to be inadequate it will be ordered to be increased.-Reck v. The Phoenix Ins. Co., 505.
19. When an action is brought in the name of another for the benefit of the promoter and the relief is framed so as to give him the fruits of any judgment which may be had the case is clearly within the provisions of 3247 of the Code. -Slauson v. Watkins, 561.
20. A mortgagee who procures the bringing of and promotes an action in the name of the mortgagor to compel a grantee of the latter to perform his agreement to pay said mortgage is beneficially interested in the action within the provisions of said section. -Id.
See DOWER, 4; EMINENT DOMAIN, 1, 4, 9; EXECUTION, 2; RECEIVERS, 12; SURRO- GATE, 6; TAXATION, 8.
1. Where moneys are deposited by order of the court with a County Treasurer such moneys do not become the money of the county, and where they are lost through defalcation of the Treasurer the party for whose benefit the deposit was ordered can- not maintain an action therefor against the county. Gray v. The Board of Supervisors of Tompkins Co, 100.
1. Under 2944 of the Code the County Court has power to allow an amendment
of the pleadings in an action begun in justice's court and brought there on ap- peal. Ferguson v. McDonough, 128.
2. A plaintiff should not be allowed to recov er for one cause of action in a justice's court, and then on appeal substitute a new cause of action when it becomes apparent he cannot recover on his original com- plaint.-Ayers v. Sherman et al., 254.
1. So long as it does not appear that property has been disposed of fraudulently or at an unconscionable valuation creditors have no right to disturb the conveyance or have the same declared a mortgage.-Peterkin v. Cos- tello, 186.
2. The sheriff and an attaching creditor can- not, either jointly or separately, maintain an action against the assignee of the debtor to set aside the assignment as fraudulent, either under the authority of S$ 655 and 677 of the Code of Civ. Pro., or for the purpose of protecting and enforcing the lien of the attachment.-Bowe et al. v. Arnold et al., 326.
3. A creditor can maintain such an action only after judgment has been entered in his favor, and either after the execution has been returned unsatisfied or before the re- turn of the execution for the purpose of removing obstructions and setting aside fraudulent dispositions of the debtor's prop- erty rendering the execution ineffectual.- Id.
4. An action in the nature of a creditor's bill, based upon an execution outstanding at the commencement of the action, was brought to set aside certain transfers by the judg ment debtors as fraudulent; and thus to enforce the lien of plaintiff's judgment. Held, That the return of the execution un- satisfied pending the action was not a bar to plaintiff's right to the relief sought.-The Roger Wheel Co. v. Fielding et al., 409.
5. A conveyance made for a nominal consider- ation, the grantor at the time being insol- vent, warrants the conclusion that it is fraudulent and void as to creditors.-Id.
6. To constitute a valid general assignment for the benefit of creditors, the duly acknow- ledged assent of the assignee in writing to the assignment is necessary.―ld.
7. Several fraudulent transfers may be reach- ed and adjudged void in a single action. --ld. See EVIDENCE, 20.
1. When the defendant in a criminal action testifies in his own behalf, and the people
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