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year from

and the money paid through the forcement attended with doubt or Am. Ex. Nat. Bank.

difficulty. Wm. Henry Arnoux, for applt. Judgment of General Term, Edward M. Shepard, for respt. affirming judgment for plaintiff,

Held, That plaintiff should not affirmed. he regarded as a mere purchaser, or Opinion by Danforth, J. All Brooks a seller ; that B. occupied concur. towards plaintiff a fiduciary relation; that although the contract

MUNICIPAL CORPORATION. was not in writing, being suscepti

LEASE. ESTOPPEL. ble of a part performance and having been performed in part hy N. Y. COURT OF APPEALS. plaintiff and B. having received the consideration of his undertak

Davies, applt., v. The Mayor, ing, and which he has partly exe

&c. of N. Y., respt. cuted by procuring the stock and Decided Oct. 2, 1883. bonds in question, B, should fully execute the contract by delivering

In pursuance of a resolution of the Board of

Supervisors, the parties hereto executed a them to plaintiff. 5 H. of L. Cas.,

lease of certain premises as chambers 256 ; 1 Halst. Ch., 86; 10 Conn., for the recorder for 121. The fact that plaintiff has no May 1, 1872. The recorder contintitle to specific shares or bonds ued to occupy them until July, 1877. which he could assert at law fur

Held, That if defendant desired to termi

nate the lease it was its duty to surrender nishes an additional reason for

possession ; that as it continued the recorasking equitable relief.

der in possession for several years after the It was not necessary that the expiration of the original lease, plaintiff

had a right, in the absence of notice, to ascomplaint should in terms give

sume that his remaining in possession after defendant the character of trustee.

May 1 was by the authority or acquiesIt is embraced within the proof, cense of defendant and to treat it as a A court of equity has jurisdic

newal for another year. tion to decree a specific perform- A general offer of judgment accepted, upon

which judgment is entered, concludes the ance where chattel property alone

party accepting it from bringing a new acis concerned, and no good reason tion for any part of the claim embraced in exists against its exercise, in any

the complaint and which might have been case where compensation in dam

litigated in the action. ages would not furnish a complete This action was brought to reand satisfactory remedy. 2 Barb. cover rent of certain premises in Ch., 609; 76 N. Y., 365; Pomeroy New York city for one year from on Spec. Perf., SS 14, 16, 17, 18; May 1, 1877. It appeared that the Story's Eq. Jur., SS 716-731. To tenancy was initiated under

а obtain such relief through the in- written lease from plaintiff to the terposition of a court of equity it Board of Supervisors for one year is sufficient that plaintiff's case is from May 1, 1872. . The premises good, his right clear and the rem- were hired for the use of the reedy at law defective, or its en- corder as his chambers and he en


tered into possession and contin- corporation is not bound by the ued to occupy them until about unauthorized act of an individual, July 1, 1877, when he removed to whether an officer of the corporaa city building. The keys of tion or a mere private person, but plaintiff's premises were not re- it may so deal with third persons turned to him nor did he resume as to justify them in assuming the possession until after May 1, 1878. existence of an anthority in anBy the terms of the lease the rent other, which in fact has never was $2,000 a year, payable quar- been given. terly. It was claimed by defend- A general offer of judgment acant that it was not bound by the cepted, upon which judgment has holding over of the recorder be- been entered, concludes the party cause he was not authorized to do accepting it from bringing a new so, a resolution having been passed action for any part of the claim by the common council, Dec. 26, embraced in the complaint and 1876, assigning rooms in the city which might have been litigated in building for his use. These rooms

the action. so assigned were not ready for Judgment of General Term, afoccupancy until about Aug. 1, firming judgment dismissing com1877. The resolution also directed plaint, reversed and new trial the

Commissioner of Publicordered.
Works " to give notice and make Opinion by Andrews, J.

All provision accordingly." There

concur. was nothing in the action of the common council to indicate a de

CORPORATIONS. SURPLUS. sign to terminate the occupancy of plaintiff's premises before the

N. Y. COURT OF APPEALS. new chambers were ready.

Strong, respt., v. The Brooklyn Edmund Coffin, Jr., for applt.

Crosstown RR. Co., applt.
D. J. Dean, for respt.
Held, That it was defendant's

Decided Oct. 9, 1883. duty, if it desired to terminate the

A mere diminution of the capital stock of a lease, to surrender possession; that corporation pursuant to Chap. 264, Laws of not having done so, but having

1878, does not authorize the distribution continued the recorder in posses

among the stockholders of a sum equal to

the difference between the original amount sion for several years after the ex- of capital and the reduced amount, even piration of the original lease, where it appears that the original amount plaintiff had a right to assume, in

was actually paid in. The surplus which a

corporation is at liberty to distribute under the absence of notice, that his re

that act is to be ascertained in each case maining in possession after May

and depends upon the result of an examin1, 1877, was by the authority or ation into its affairs. acquiescence of defendant and to Whenever, by means of earnings, sales of treat it as a renewal of the lease

property or otherwise, the corporation be

comes possessed of funds in excess of the for another year.

reduced amount of its capital it can distriAs a general rule a municipal bute that excess without violating any law.

A stockholder seeking to restrain a distribu- the meeting shall proceed and the tion of surplus is bound to make out a clear

vote be taken in a manner pointed case of violation of corporate power to his injury.

out, and if on canvassing the votes

it shall be found that a sufficient Plaintiff was the holder of fifty number of votes have been given shares of one hundred dollars each in favor of diminishing the amount of the capital stock of defendant, a of capital stock, a certificate shall horse railroad company organized be made and verified, showing the under the general laws of this state. amount of capital actually paid Defendant was organized in 1868 in, the whole amount of debts and with a capital of $300,000. In 1874 liabilities of the company, the its capital was increased to $400,- amount to which the capital stock 000. In June, 1878, under Chap. shall be diminished. This certifi264 of Laws of 1878 it reduced its cate is required to be filed, with capital to $200,000, by a vote of its the approval of the comptroller directors and stockholders and to the effect that the reduced cap the proceedings prescribed by that ital is sufficient for the proper puract, and immediately after the poses of the company; that it is in directors caused to be issued cer- excess of all debts and liabilities tificates of indebtedness bearing of the company exclusive of debts interest for $200,000, to be distrib. secured by trust mortgages ; that uted to the stockholders on their the actual market value of the surrendering, their certificates for stock prior to the reduction of the $100 shares and accepting in ex capital was less than the par value change certificates for $50 shares. of the same. These are the only This arrangement was assented to provisions of said act. by all the stockholders except Robert Sewell, for applt. plaintiff and the holder of fifty John H. Bergen, for respt. other shares.

Plaintiff applied Held, That the mere diminution for and obtained an injunction authorized by the act of 1878 does restraining the company from not authorize the distribution paying any part of the certifi- among the stockholders of a sum cates of indebtedness

or any equal to the difference between the interest thereon out of the earn. amount originally named as capiings or funds of the company. tal and the reduced amount fixed The act of 1878, Chap. 264, requires by the vote of the stockholders, that whenever any company de- even where it appears that the sires to call a meeting of its stock- original amount was actually paid holders for the purpose of “dimin- in. To authorize such a distribuishing the amount of its capital tion, if the original capital has stock," a certain notice shall be been paid in, it should appear that served ; that a vote of at least two- the capital so paid in has not been thirds of all the shares shall be impaired ; if it has been impaired necessary to a diminution of the it should appear that the corporaamount of the capital stock; that! tion still has on hand actual capital available for the payment of judgment restraining payment of debts exceeding the amount to the certificates. which it has reduced its capital, Judgment of General Term, afand if it has, the excess only firming judgment for plaintiff, reshould be distributed.

versed and new trial granted. The surplus, if any, which a Opinion by Rapallo, J. All corporation reducing the amount concur. of its capital under the act of 1878 is at liberty to pay to its stock. holders must in every case be as

EXECUTION. WAIVER. certained, and depends upon the N.Y. SUPREME COURT. GENERAL result of an examination into its

TERM. FIRST DEPT. affairs, not upon the difference between the original amount of capi- In re estate of Emma Bartlett. tal and the reduced amount, and whenever, by sales of property or

Decided Nov. 5, 1883. by means of earnings or other

When, on a contest over the right to letters of wise, the corporation comes in pos- administration, the surrogate makes a desession of funds which are in ex- cree charging the costs of the proceedcess of the reduced amount fixed

ings upon the contestant personally, the

right to issue execution against such conas capital, it can distribute that

testant for the collection of such costs for excess withont violating any law. the benefit of the estate is not lost by their 8 Daly 400; 78 N. Y., 608.

payment out of the estate by the consent of This action was not brought un

all parties during the pendency of an ap

peal from such decree which results in its til three years after the proceed

affirmance. ings for the reduction of capital. Certificates to the amount of $189,- Appeal from an order of the 500 had been issued, of which Surrogate's Court denying motion $55,000 had been paid out of the on the part of the appellant D. to earnings of the company, and set aside an execution against his plaintiff now objects for the first personal property under a decree time to the payment of the resi- of that court. due.

By a final decree of the SurroHeld, That plaintiff, if he has gate's Court, made October 17, not by his delay lost the right to 1879, establishing the riglit of the come into a court of equity to im- respondent H. to letters testamenpeach the proceedings, is at least tary on the probate of the will of bound to make out a clear case of Emma Bartlett, it was, amongst violation of corporate power to his other things, adjudged and decreed injury; that although the issuing that the costs and disbursements of certificates of indebtedness for of the proceedings should be the amount of the surplus over charged personally upon the obthe amount of the capital reduced jectors to the said letters being iswas unauthorized, that was not sued to H. An appeal was taken sufficient to entitle plaintiff to a i from this decree to the General

Vol. 18.--No. 3b.

Term of the Supreme Court, where inadmissible, as it had no relation to the case the same was affirmed. While the

on trial. appeal was pending the costs and The defendant was indicted for disbursements, by consent, were the crime of an assault with intent allowed to be paid out of the estate to kill one M. He was tried and of the testatrix. After the affir- convicted of an assault with intent mance of the decree,execution was to do bodily harm. The evidence issued for the purpose of collect- showed that the alleged assault ing the costs from the objector's took place at or near premises personally for the benefit of the which were occupied in part by one estate, and a motion was made to M., between 7 and 8 P. M. of May set it aside on the ground that the 20, 1882.

20, 1882. M. was in possession of costs having been advanced by the premises, and defendant claimthe estate with the consent of the ed the right to enter upon the parties, the claim for their collec- same, his wife having been in oction or payment was wholly dis- cupation of a portion thereof, charged.

which she had left in charge of M. John Croak, for applt.

Defendant fired his pistol in difJosiah Fletcher, for re:pt. ferent parts of the house, threat

Held, That the liability of the ening to kill the people therein, appellant to pay the costs remain and there was proof that one or ed intact notwithstanding the pay. more of the shots came very near ment of them by the estate, and the persons of some of the inthe right to an execution to en- mates, and that it was defendant's force them for the benefit of the intention to have them do so. estate still existed.

After this he set fire to a bed, Order affirmed, with costs. bedstead and slats, which he had

Opinion by Davis, P. J.; Brady, thrown out of the window into the J., concurs.


While this fire was burn

ing M. came out on the porch CRIMINAL LAW. EVI

and defendant fired two shots at DENCE.

him. After this, at about 9.30 P.

M., one J. and two other persons N. Y. COURT OF APPEALS.

came to the place while the fire The People, respts., v. Gibbs,

was still burning, and an altercation ensued

ensued between defendant applt.

and J., and defendant used harsh Decided Oct. 16, 1883.

and violent language in regard to

M., and J. defended him. Under On the trial of an indictment for a felon.

ious assault upon one M. the prosecution objection by defendant's counsel was allowed to prove that shortly after said the prosecution then proved an assault and in the absence of M. the prison affray between the defendant and er had an altercation respecting him with

J., in which the defendant one J., and that he then drew a pistol and atiempted to fire it, when he was overcome

drew a pistol and attempted to and arrested. Held, That the evidence was fire it. The pistol went off in the

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