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18. Plaintiff gave defendant a warranty deed 22. Where the child's maternal relatives, in-
of certain premises under an agreement by duced by such promise to repay, furnish
which it was to be held as security and the the support, etc., requested by the father,
property reconveyed on payment of such their conduct is a sufficient consideration
sums as might be loaned and an amount to for his promise and makes the contract bind-
be agreed upon.
Defendant caused the ing.-Id.
premises to be conveyed to his wife and re.
fused to convey to plaintiff on render and 23. An action upon such promise or under-
demand. In an equity action brought by taking may be brought by the child in her
plaintiff the court directed a reconveyance own name.-Id.
on payment of a specified sum. In this
action for damages for failure to reconvey
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 potes 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
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
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
4. A stockholder seeking to restrain à dis-
tribution of surplus is bound to make out a
clear case of vivlation of corporate power
to his injury.-Id.
6. The provisions of SS 647 and 649 of the
Code do not apply to the shares of stock of
a foreign corporation.—Plimpton et al. v.
12. A stuckholder 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
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
Suvings Bank, 287.
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 - Bengslein v. The
Thingoalla 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.
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
21. Where a party accepis 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 fixed,
Ileld, 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 $ 189,500 was ever
subscribed. By the act of 1873, the Albany
Iron Mfg. Co. becaine 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
mullity 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.
17. In actions upon unpaid subscriptions for
stock and against assignees of stock not
fully paid for courts have respect to the
terins of the contract and certificate and the
circumstances of the case. —Billings v. Rob.
18. Defendant, who held up paid 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-
tied 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
23. A manufacturing corporation increased its
capital without complying with the pro-
visions of law in relation to publishing
notice of the meeting or filiny 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 certiti-
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.
See APPEAL, 2, 3: Banks, 3; CHATTEL
MORTGAGE, 3; INJUNCTION, "9, 10; Ix-
TEREST, 2; LEASE, ; PLEADING, 9, 21-
23; SALE, 2.
9. Where a bill of costs contained an item for
searches, accompanied by an athidavit 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.
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,
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.
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 Philo. Architectural Iron Co. et al.,
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.- Varsh v. T'he Village of Lansing.
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
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 Piper Co. v.
not united in interest. When the success- of the pleadings in an action begun in
ful defendant unites with his co-defendant justice's court and brought there on ap.
in the answer, though he was not united peal.-Ferguson v. AcDonough, 128.
in interest, he is not entitled to costs.-
Frazer et al. v. Hunt et al., 390.
2. A plaintiff should not be allowed to recov.
er for one cause of action in a justice's
16. Upon the decision of an appeal by de- court, and then on appeal substitute a new
fendant to the Court of Appeals from a cause of action when it becomes apparent
judgment granting a new trial the remit- he cannot recover on his original com-
iitur from the Court of Appeals granted plaint.— Ayers v. Sherman et al., 254.
judgment absolute to plainiiif on defend-
ant's stipulation, with costs. Held, That See APPEAL, 25, 26.
“ 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.
1. So long as it does not appear that property
has been disposed of fraudulenty or at an
17. The Court will not reverse or modify an unconscionable valuation creditors have no
order granting an extra allowance except right to disturb the conveyance or have the
in cases of abuse of discretion by the Court same declared a mortgage.- Peterkin v. Cos-
18. A motion for additional security for costs 2. The sheriff and an attaching creditor can.
given by a non-residant plaintiff is not too not, either jointly or separately, maintain
late after the action has been tried, the com. an action against the assignee of the debtor
plaint dismissed. and the exceptions or. to set aside the assignment as fraudulent,
dered to be heard at the General Term in
either under the authority of $$ 655 and 677
the first instance, and if, on such a motion, of the Code of Civ. Pro., or for the purpose
the security is shown to be inadequate it of protecting and enforcing the lien of the
will be ordered to be increased. - Reck v. attachment.-Boue et al. V. Arnold et
The Phænir Ins. Co., 505.
19. When an action is brought in the name of 3. A creditor can maintain such an action only
another for the benefit of the promoter and after judgment has been entered in his
the relief is framed so as to give him the favor, and either after the execution bas
fruits of any judgment which may be had been returned unsatisfied or before the re-
the case is clearly within the provisions of turn of the execution for the purpose of
$ 3247 of the Code. --Slauson v. Watkins, removing obstructions and setting aside
fraudulent dispositions of the debtor's prop-
erty rendering the execution ineffectual. -
20. A mortgagee who procures the bringing Id.
of and promotes an action in the name of
the mortgagor to compel a grantee of the 4. An action in the nature of a creditor's bill,
latter to perform his agreement to pay said based upon an execution outstanding at the
mortgage is beneficially interested in the commencement of the action, was brought
action within the provisions of said section. to set aside certain transfers by the judg.
ment debtors as fraudulent; and thus to
See DowER, 4; EMINENT DOMAIN, 1, 4, 9;
enforce the lien of plaintiff's judgment.
EXECUTION, 2; RECEIVERS, 12; Surro-
Held, That the return of the execution un-
satisfied pending the action was not a bar to
GATE, 6; TAXATION, 8.
plaintiff's right to the relief sought. — The
Roger Wheel Co. v. Fielding et al., 409.
See EstOPPEL, 8.
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.
1. Where moneys are deposited by order of
the court with a County Treasurer such
6. To constitute a valid general assignment for
the benefit of creditors, the duly acknow.
moneys do not become the money of the
county, and where they are lost through
ledged assent of the assignee in writing to
defalcation of the Treasurer the party for
the assignment is necessary.-ld.
whose benefit the deposit was ordered can- 7. Several fraudulent transfers may be reach-
not maintain an action therefor against the
ed and adjudged void in a single action.--Id.
county. Gray v. The Board of Supervisors
of Tompkins Co , 100.
See EVIDENCE, 20.
1. Under $2944 of the Code the County 1. When the defendant in a criminal action
Court has power to allow an amendment testifies in his own behalf, and the people