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That the part taken by him in such proceed- ceedings did not amount to a waiings did not amount to a waiver of his right

ver of his right to hold defendants to hold the debtors for a fraud in contracting the debt.

for the fraud committed in creatThe court received in evidence the order of ing the debt, or a surrender of his

arrest and the ex parte atsidavits on which it claim against defendant on account was granted. Teld, Error ; that defendant of the fraud. It is the fraud in had a right to move to vacate the order at

contracting the debt which renders any time before final judgment. An omission to answer a written allegation,

the creditor liable even after his whether by affidavit or otherwise, cannot discharge, and whenever it ap. be regarded as an admission of the correct

pears that such fraud existed the ness thereof and that it is true in all re

defence of a composition is untenspects.

able. 53 N. Y., 123 ; 12 Hun, 658; This action was brought to re- 6 W. Dig., 265; 4 Hun, 590. cover a balance due for goods sold Wilmot v. Mudge, 13 Otto, 217, and delivered which were obtained distinguished. by fraud. It was claimed that It is claimed that the court erred plaintiff having accepted his share in receiving in evidence the ex of the assets under a composi- parte affidavits and the order of tion in bankruptcy proceedings is arrest granted upon them. The barred by it and cannot maintain statements in these affidavits had this action. It appeared that not been answered by defendants. plaintiff participated in the bank- Held, That they were erroneousruptcy proceedings in which the ly received ; that defendant had a resolution for the composition was right to move to vacate the order duly passed ; he proved his claim of arrest at any time before final as a creditor, as an unsecured debt judgment. on contract for goods sold and de- As to whether a failure to do so livered; he resisted the passage, was an acquiescence in the correctconfirmation and recording of the ness of the affidavits and of the resolution for composition on the order granted, quare. ground that the proceedings were While a party may be called not fair and just, but were fraudu- upon in many cases to speak when lent, and refused to receive the a charge is made against him, and dividend on his claim until defend- in failing to do so may be considants petitioned the court for leave ered as acquiescing in its correctto deposit the same to his credit, ness, his omission to answer a when he gave a receipt for his div- written allegation, whether by idend under said composition, affidavit or otherwise, cannot be alleging and setting forth therein regarded as an admission of the that he received the same under correctness thereof and that it is protest.

true in all respects. L. A. Gould, for applts.

Judgment of General Term, afL. L. Van Allen, for respt. firming judgment on verdict for

Held, That the part taken by plaintiff, reversed and new trial plaintiff in the bankruptcy pro granted.

Opinion by Miller, J.

All con

to have objected to the assignment. cur.

L. set up in his answer that no one

but B. & H. was interested in the ASSIGNMENT FOR CRED. partnership property, and W. tesITORS. PARTNERSHIP. tified that he had drawn more than

the share of the profits agreed to N. Y. COURT OF APPEALS.

be paid to him, Adee, recr., applt., v. Cornell,

William A. Duer, for applt. assignee, et al., respts.

John B. Pannes, for respts. Decided Oct. 26, 1883.

Held, That under the circum

stances the assignment was good B. & H., who were partners, made a general to pass all the interest of B. & H. assignment to C. L. & W. had been em

in the property. They are the ployed by them under an agreement that they were to receive a portion of the profits only parties whose property the in lieu of salary. In an action by the receiver is entitled to pursue and receiver of B. & H. to set aside the assign the only parties who ever had any ment because L. & W. did not join therein, L.

title to the property assigned to C. &W. disclaimed any interest in the partnership property, and it appeared that W. bad

Judgment of General Term, afoverdrawn his portion of the profits. Ileta, firming judgment for defendants, that the assignment was good to pass all affirmed. the interest of B. & H.

Opinion by Rapallo, J. All Affirming S. C., 12 W. Dig., 472.

concur. This action is founded on a judgment recovered against the de

TRUSTEE. CONTRACT. PRACfendants B. & H., who owned all

TICE. the capital and stock in trade of the firm of B. & Co. They as. N. Y, SUPREME COURT. GENERAL signed this property to defendant TERM. FOURTH DEPT. C., in trust, to pay the firm debts. Plaintiff is the receiver of the prop

Bridget Welch, applt., v. Harerty of B. & H. Plaintiff seeks lan D. Preston et al., respts. to impeach the assignment to C. Decided June, 1883. on the ground that B. & H. had

Where one agreed to bid in premises at foremade an arrangement with L. &

closure sale and hold them, giving another W., who were made defendants,

the option of purchasing them within a certo give them as a compensation tain time, and the second party, through for their services, in lieu of a salary,

mistake, failed to exercise her option within

the time, Held, That the purchaser held as a portion of the profits of the bus

trustee, and the contract could be enforced iness of the firm of B. & Co., and

against him within a reasonable time. plaintiff claims that this made L. Parties may agree upon additional findings by & W. partners in the firm, and as

a referee, even since the adoption of the they did not join in its assignment

present code. to C. it was void. L. & W. dis- Appeal from judgment on referclaim any interest in the partner- ee's report. ship property and do not appear Action to compel specific per

formance of a contract to convey He also found that plaintiff failed real estate.

to fulfill the contract within the Plaintiff is the widow of Patrick time fixed, and held that the comWelch, who died Oct. 13, 1869, plaint should be dismissed. There seized of said real estate, subject was a conflict of testimony as to to a mortgage on which $300 was the time granted by the extension, then due. In the spring of 1878, it being testified on plaintiff's part defendants H. and U. purchased that it was for two or three days, said mortgage, and by defendant and on defendant's that it was for P., their attorney, began foreclos- but one day. At the settlement of ure thereof, and obtained judg- the case, the referee made additionment for sale of the premises, and al findings, to the effect that plainthe sale was advertised for Oct. 7, tiff understood she was to have two 1878. Plaintiff intended to pur- or three days additional time to chase at said sale, as defendants perform, and that the parties were well understood. Shortly before to meet at the Syracuse bank and the sale, a cloud on the premises the money was to be paid and the was discovered in the shape of an contract to be performed there; old mortgage which all parties de that plaintiff was anxious to persired to remove, and thereupon P. form on her part, and expected tu agreed in writing with plaintiff perform on the third day if P. had that he would bid in the property been ready at the bank with the for the amount of the judgment deed ; that on that day she atand expenses, and would hold the tended at the bank most of the day same for twenty days, and would for that purpose, but P. did not deed the premises to plaintiff if appear because he understood the she should desire and demand it time had expired. In Nov., 1878, within the twenty days on her P. bought the interest of H. and U. paying the amount of the judg- in the premises, and is still sole ment with interest and expenses. owner thereof, and in Dec., 1878, By the agreement plaintiff stipu- plaintiff tendered him full perlated, in consideration of the deed, formance of the contract on her to pay to P., by second mortgage part, and demanded performance on the premises, one-half of a from him, all which he refused. judgment owned by H. and U. The referee found, also, that P. against plaintiff's daughter. P., did not tender a deed to plaintiff in making the contract, assumed to and demand performance on the act as attorney and agent of H. and twentieth day or afterwards. U. The premises were bid in by M. Ms. Waters, for applt. P., in pursuance of the contract. J. C. Hunt, for respts. The referee found that on the lleld, That in making his purtwentieth day, the time for per- chase, P. acted as trustee of plainformance of the contract on plain- tiff. 34 N. Y., 307; 3 Hun, 254. tiff's part was extended for one Time was not so far of the esday, by parol, by mutual consent. sence of the contract as to prevent

its enforcement upon equitable ATTACHMENT. FOREIGN terms within a reasonable time

CORPORATION. after the lapse of the period specified. Fry on Spec. Perf., $ 712;

N. Y. COURT OF APPEALS. 13 Ves., 287 ; 5 Paige, 620. Plain

Plimpton et al., respts., v. Big. tiff's delay evinces no intention on

elow, applt. her part to abandon the contract; and at the time of her tender in Decided Nov. 20, 1883. December no equitable bar to her

The provisions of $8 647 and 649 of the Code claim had arisen.

do not apply to the shares of stock of a forPlaintiff is not affected by the eign corporation. conversation which her daughter A corporation has its domicile and residenc

alone within the bounds of the sovereignty had with P.and H. in regard to sell

which created it, and its stock can only be ing the property to her mother, after

present for the purpose of judicial proceedtheir assertion that plaintiff's rights ings at the place of residence of its owner under the contract were ended, as it

or that of the corporation. does not appear that the daughter Reversing S. C., 17 W. Dig., 73. acted with plaintiff's knowledge or This action was brought by authority in that respect.

plaintiffs, residents of MassachuNor is it any objection to plain- setts, against defendant, a resitiff's claim, that by the terms of dent of Pennsylvania, upon sevthe contract it was optional with eral promissory notes of defendher to purchase. The case is anal-ant, made and delivered in Massaogous to those where a contract for chusetts, and payable generally. sale of lands is subscribed by the An order was procured for the vendor and not by the vendee. 1 service of the summons on defendSeld., 229, 246, and cases cited. ant by publication, and a warrant

Although there is no statutory of attachment was issued against authority for the additional find his property. The sheriff of the ings by the referee since the adop- City and County of New York tion of the Code of Civ. Pro., levied upon certain shares of the yet it is competent for parties to stock of a corporation incorporaagree upon a statement of facts on ted under the laws of Pennsylvawhich the appeal shall be heard, nia, which were owned by defendand the appellate court will con- ant, and for which he then held sider the same if it appears to have and had in that state stock certifibeen settled and signed by the cates, issued and delivered to him referee or trial judge, in accord at the office of the company, in ance with the rule. Moreover, it Philadelphia, in February, 1882, is too late now to object.

at which place the stock and Judgment reversed and new trial transfer books of the company ordered before another referee, then were and still are kept. A

certified copy of the warrant, toOpinion by Smith, P. J.;gether with the notice prescribed Hardin and Haight, JJ., concur.

by S649 of the Code of Civ.

costs to abide event.




served the sec- set aside and vacated to relieve retary of the company at his his stock from the cloud and emoffice in the city of New York, barrassment created by the prowhere the factory of the company ceedings. 74 N.Y., 147; 84 id., 617. was also situated and its goods Order of General Term, reversmanufactured, several of its di- ing order of Special Term varectors residing in said city. cating levy, reversed, and order of Samuel Hand, for applt.

Special Term affirmed. Edward D. Bettens, for respts. Opinion by Andrews, J. All

Held, That the provisions of concur. SS 647 and 649 of the Code of Civil Procedure do not apply to CHATTEL MORTGAGE. FOREthe shares of stock of a foreign

CLOSURE. EVIDENCE. corporation, that a corporation has its domicile and residence N. Y. SUPREME COURT. GENERAL alone within the bounds of the

TERM. FOURTH DEPT. sovereignty which created it, and it is incapable of passing person

John M. French, Jr., applt., v. ally beyond that jurisdiction, 13 Daniel W. Powers, respt. Pet., 519; 18 How., U. S., 404; 34

Decided June, 1883. N. Y., 208; 41 id., 501. While

Formal notice of sale under a chattel mort. such a corporation may, through

gage may be waived by the mortgagor atits agents, subject itself to the

tending the sale and not objecting to it. jurisdiction of a foreign tribunal, Nor can the mortgagor afterwards object Code, SS 432, 1780; 18 How., U. S., that the mortgagee purchased at such sale 404; 63 N. Y., 114, its stock can

where such purchase was made at the

mortgagor's request, only be present for the purpose of Pending negotiations for settlement, defendjudicial proceedings at the place azt referred plaintiff to his attorney as auof residence of the owner or the thorized to speak for him. Held, That evplace of residence of the corpora

idence of what passed between the attor

ney and plaintiff was admissible, unless it tion. Section 647 of the Code has

was a mere offer to do something by way an appropriate application, and of compromise. applies only to shares in domestic Whatever tends to refute an attempted excorporations. 2 Tenn. Ch., 375; 13

planation is equally material with the evi

dence given in such explanation. Penn., 223; 24 id., 26; Drake on Attachments, SS 244, 471, 478. Appeal from judgment on refe

The res must be actually or con- ree's report. structively within the jurisdiction Action to procure an adjudicaof the court issuing an attachment tion that defendant holds certain in order to make a valid or effect property and moneys described in ual seizure under the process. the complaint as a creditor of the Story's Conflict of Laws, SS 532, firm of John M. French & Co., 592a; 63 N. Y., 114; 7 W. & S., 447. and as mortgagee and pledgee of

Also held, That defendant was the same, and to require him to entitled to move to have the levy account therefor. Plaintiff has

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