Wm. Henry Arnoux, for applt. Edward M. Shepard, for respt. Held, That plaintiff should not be regarded as a mere purchaser, or Brooks a seller; that B. occupied towards plaintiff a fiduciary relation; that although the contract was not in writing, being susceptible of a part performance and having been performed in part by plaintiff and B. having received the consideration of his undertaking, and which he has partly executed by procuring the stock and bonds in question, B. should fully execute the contract by delivering them to plaintiff. 5 H. of L. Cas., 256; 1 Halst. Ch., 86; 10 Conn., 121. The fact that plaintiff has no title to specific shares or bonds which he could assert at law furnishes an additional reason for asking equitable relief.

It was not necessary that the complaint should in terms give defendant the character of trustee. It is embraced within the proof,

A court of equity has jurisdiction to decree a specific performance where chattel property alone is concerned, and no good reason exists against its exercise, in any case where compensation in damages would not furnish a complete and satisfactory remedy. 2 Barb. Ch., 609; 76 N. Y., 365; Pomeroy on Spec. Perf., $$ 14, 16, 17, 18; Story's Eq. Jur., §§ 716-731. To obtain such relief through the interposition of a court of equity it is sufficient that plaintiff's case is good, his right clear and the remedy at law defective, or its en

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Danforth, J. All concur.

MUNICIPAL CORPORATION. LEASE. ESTOPPEL.

N. Y. COURT OF APPEALS.

Davies, applt., v. The Mayor, &c. of N. Y., respt.

Decided Oct. 2, 1883.

In pursuance of a resolution of the Board of

Supervisors, the parties hereto executed a lease of certain premises as chambers for the recorder for one year from May 1, 1872. The recorder continued to occupy them until July, 1877. Held, That if defendant desired to terminate the lease it was its duty to surrender possession; that as it continued the recorder in possession for several years after the expiration of the original lease, plaintiff had a right, iu the absence of notice, to assume that his remaining in possession after May 1 was by the authority or acquiescense of defendant and to treat it as a renewal for another year.

A general offer of judgment accepted, upon

which judgment is entered, concludes the party accepting it from bringing a new action for any part of the claim embraced in the complaint and which might have been litigated in the action.

This action was brought to recover rent of certain premises in New York city for one year from May 1, 1877. It appeared that the tenancy was initiated under a written lease from plaintiff to the Board of Supervisors for one year from May 1, 1872. The premises

were hired for the use of the recorder as his chambers and he en

tered into possession and continued to occupy them until about July 1, 1877, when he removed to a city building. The keys of plaintiff's premises were not returned to him nor did he resume possession until after May 1, 1878. By the terms of the lease the rent was $2,000 a year, payable quarterly. It was claimed by defendant that it was not bound by the holding over of the recorder because he was not authorized to do so, a resolution having been passed by the common council, Dec. 26, 1876, assigning rooms in the city building for his use. These rooms so assigned were not ready for occupancy until about Aug. 1, 1877. The resolution also directed the Commissioner of Public Works to give notice and make provision accordingly." There was nothing in the action of the common council to indicate a design to terminate the occupancy of plaintiff's premises before the new chambers were ready.

Edmund Coffin, Jr., for applt.
D. J. Dean, for respt.

Held, That it was defendant's duty, if it desired to terminate the lease, to surrender possession; that not having done so, but having continued the recorder in possession for several years after the expiration of the original lease, plaintiff had a right to assume, in the absence of notice, that his remaining in possession after May 1, 1877, was by the authority or acquiescence of defendant and to treat it as a renewal of the lease for another year.

As a general rule a municipal

corporation is not bound by the unauthorized act of an individual, whether an officer of the corporation or a mere private person, but it may so deal with third persons as to justify them in assuming the existence of an authority in another, which in fact has never been given.

A general offer of judgment accepted, upon which judgment has been entered, concludes the party accepting it from bringing a new action for any part of the claim embraced in the complaint and which might have been litigated in the action.

Judgment of General Term, affirming judgment dismissing complaint, reversed and new trial ordered.

Opinion by Andrews, J. All

N. Y. COURT OF APPEALS. Strong, respt., v. The Brooklyn Crosstown RR. Co., applt.

Decided Oct. 9, 1883.

A mere diminution of the capital stock of a corporation pursuant to Chap. 264, Laws of 1878, does not authorize the distribution 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 distribute under that act is to be ascertained in each case and depends upon the result of an examination into its affairs. Whenever, by means of earnings, sales of property or otherwise, the corporation becomes possessed of funds in excess of the reduced amount of its capital it can distribute that excess without violating any law.

A stockholder seeking to restrain a distribution of surplus is bound to make out a clear case of violation of corporate power to his injury.

Plaintiff was the holder of fifty shares of one hundred dollars each of the capital stock of defendant, a horse railroad company organized under the general laws of this state. Defendant was organized in 1868 with a capital of $300,000. In 1874 its capital was increased to $400,000. In June, 1878, under Chap. 264 of Laws of 1878 it reduced its capital to $200,000, by a vote of its directors and stockholders and the proceedings prescribed by that act, and immediately after the directors caused to be issued certificates of indebtedness bearing interest for $200,000, to be distributed to the stockholders on their surrendering, their certificates for $100 shares and accepting in exchange certificates for $50 shares. This arrangement was assented to by all the stockholders except plaintiff and the holder of fifty other shares. Plaintiff applied for and obtained an injunction restraining the company from paying any part of the certificates of indebtedness or any interest thereon out of the earnings or funds of the company. The act of 1878, Chap. 264, requires that whenever any company desires to call a meeting of its stockholders for the purpose of "diminishing the amount of its capital stock," a certain notice shall be served; that a vote of at least twothirds of all the shares shall be necessary to a diminution of the amount of the capital stock; that

the meeting shall proceed and the vote be taken in a manner pointed out, and if on canvassing the votes it shall be found that a sufficient, number of votes have been given in favor of diminishing the amount of capital stock, a certificate shall be made and verified, showing the amount of capital actually paid in, the whole amount of debts and liabilities of the company, the amount to which the capital stock shall be diminished. This certificate is required to be filed, with the approval of the comptroller to the effect that the reduced cap ital is sufficient for the proper purposes of the company; that it is in excess of all debts and liabilities of the company exclusive of debts secured by trust mortgages; that the actual market value of the stock prior to the reduction of the capital was less than the par value of the same. These are the only provisions of said act.

Robert Sewell, for applt. John H. Bergen, for respt. Held, That the mere diminution authorized by the act of 1878 does not authorize the distribution among the stockholders of a sum equal to the difference between the amount originally named as capital and the reduced amount fixed by the vote of the stockholders, even where it appears that the original amount was actually paid in. To authorize such a distribution, if the original capital has been paid in, it should appear that the capital so paid in has not been impaired; if it has been impaired it should appear that the corporation still has on hand actual capi

tal available for the payment of debts exceeding the amount to which it has reduced its capital, and if it has, the excess only should be distributed.

The surplus, if any, which a corporation reducing the amount of its capital under the act of 1878 is at liberty to pay to its stockholders must in every case be ascertained, and depends upon the result of an examination into its affairs, not upon the difference between the original amount of capital and the reduced amount, and whenever, by sales of property or by means of earnings or otherwise, the corporation comes in possession of funds which are in excess of the reduced amount fixed as capital, it can distribute that excess without violating any law. 8 Daly 400; 78 N. Y., 608.

This action was not brought until three years after the proceedings for the reduction of capital. Certificates to the amount of $189,500 had been issued, of which $55,000 had been paid out of the earnings of the company, and plaintiff now objects for the first time to the payment of the resi

due.

Held, That plaintiff, if he has not by his delay lost the right to come into a court of equity to impeach the proceedings, is at least bound to make out a clear case of violation of corporate power to his injury; that although the issuing of certificates of indebtedness for the amount of the surplus over the amount of the capital reduced was unauthorized, that was not sufficient to entitle plaintiff to a

Vol. 18.-No. 3b.

Decided Nov. 5, 1883.

When, on a contest over the right to letters of

administration, the surrogate makes a decree charging the costs of the proceedings upon the contestant personally, the right to issue execution against such contestant for the collection of such costs for the benefit of the estate is not lost by their payment out of the estate by the consent of all parties during the pendency of an ap peal from such decree which results in its affirmance.

Appeal from an order of the Surrogate's Court denying motion on the part of the appellant D. to set aside an execution against his personal property under a decree of that court.

By a final decree of the Surrogate's Court, made October 17, 1879, establishing the right of the respondent H. to letters testamentary on the probate of the will of Emma Bartlett, it was, amongst other things, adjudged and decreed that the costs and disbursements of the proceedings should be charged personally upon the objectors to the said letters being issued to H. An appeal was taken from this decree to the General

Term of the Supreme Court, where the same was affirmed. While the appeal was pending the costs and disbursements, by consent, were allowed to be paid out of the estate of the testatrix. After the affirmance of the decree,execution was issued for the purpose of collecting the costs from the objectors personally for the benefit of the estate, and a motion was made to set it aside on the ground that the costs having been advanced by the estate with the consent of the parties, the claim for their collection or payment was wholly discharged.

John Croak, for applt.
Josiah Fletcher, for respt.

Held, That the liability of the appellant to pay the costs remained intact notwithstanding the pay ment of them by the estate, and the right to an execution to enforce them for the benefit of the estate still existed.

Order affirmed, with costs. Opinion by Davis, P. J.; Brady, J., concurs.

inadmissible, as it had no relation to the case on trial.

The defendant was indicted for the crime of an assault with intent to kill one M. He was tried and convicted of an assault with intent to do bodily harm. The evidence showed that the alleged assault took place at or near premises which were occupied in part by one M., between 7 and 8 P. M. of May 20, 1882. M. was in possession of the premises, and defendant claimed the right to enter upon the same, his wife having been in occupation of a portion thereof, which she had left in charge of M. Defendant fired his pistol in different parts of the house, threatening to kill the people therein, and there was proof that one or more of the shots came very near the persons of some of the inmates, and that it was defendant's intention to have them do so. After this he set fire to a bed, bedstead and slats, which he had thrown out of the window into the yard. While this fire was burning M. came out on the porch and defendant fired two shots at him. After this, at about 9.30 P. M., one J. and two other persons came to the place while the fire was still burning, and an altercation ensued between defendant and J., and defendant used harsh and violent language in regard to M., and J. defended him. Under objection by defendant's counsel the prosecution then proved an affray between the defendant and J., in which the defendant drew a pistol and attempted to fire it. The pistol went off in the