Bliven agt. Peru Steel and Iron Company.

or creditor of a private corporation to procure the closing up of its affairs by a receivership. It should be read in connection with the provisions of title 2 of chapter 15 of the Code of Civil Procedure, which modify very much the rules heretofore applicable on this subject. The opinion points out that a stockholder or a creditor cannot, except under the statute, compel the dissolution of the corporation in this manner, even if the corporation do not resist the proceeding or substantially assent to the receivership. The question whether a stockholder can proceed under the statute (2 R. S., section 38; 3d Id. [6th ed.], 748) on the neglect of the corporation for more than one year to pay its debts, &c.; or for the suspension of its business - a question not decided by the foregoing opinion was passed upon by judge DANIELS in Kitteridge agt. The Kellogg Bridge Co. (8 Abb. N. C., 168), where he held in the affirmative in respect to corporations organized under the general manufacturing laws, conceding, however, that the contrary rule was established by the act of 1870, which gave the power of thus proceeding to the attorney-general exclusively.

Under the statutes existing previous to the adoption of the Code of Civil Procedure a clear distinction existed, recognized by the courts between an action to terminate the business and existence of the corporation, and an action to rescue it from danger of being terminated by unfaithful officers.

The provisions of the Code of Civil Procedure in effect require that an action for the former purpose must be brought by the attorney-general exclusively, unless he omits for sixty days after due request to do so, in which case the creditor or stockkolder who made the request may, with leave of court, bring the action.

In respect to the second class of actions to overhaul the conduct and transactions of officers and remove them for misconduct, the Code of Civil Procedure allows the action to be brought by the attorney-general or, except when removal or suspension from office is asked, by any creditor or officer; but singularly enough does not recognize the right, which the courts have always recognized, of a stockholder to bring the action if all the officers refuse.

There is a provision, however (Code of Civil Procedure, sections 1808, 1986), by which, if under the foregoing rules, an action can only be brought by the attorney-general alone, he may be retained for the purpose by a creditor, stockholder, director or trustee, and in such a case the action will be in the name of The People, on the relation of the person retaining him.

Whether these provisions extending the power of the attorney-general are to be in effect an enlargement of the license and immunity of the managers of corporations, or whether they are to be an additional protection for stockholders and creditors, must depend very much on the discretion and fidelity of that officer. Apart from that it would seem doubt

Adams agt. Ward.

ful whether justice is promoted by refusing to allow stockholders and creditors to apply to the court to redress any wrong to the corporation which the officers refused to do; and it is a question whether all the advantages without the inconveniences would not be secured by requiring a private plaintiff to make the attorney-general a party, and, if unsuccessful, pay his costs (See 1 Laws 1880, p. 756, c. 537).—[REP.

SUPREME COURT.

HORACE H. ADAMS agt. FRANK B. WARD and another.

Cost upon demurrer — Interlocutory costs upon issue of law-Affidavit respecting disbursements — Code of Civil Procedure, sections 419, 420, 3232, 3267.

It is proper to allow costs on the decision of a demurrer, though an issue of fact is left to be determined upon a trial.

Where the plaintiff drew the demurrer and served it and noticed the argument thereof, for such services, he is entitled to the costs before and after notice of trial, as well as twenty dollars for a trial of an issue of law.

Items for copies of documents cannot be allowed without an affidavit that it or they were actually and necessarily used or obtained for use. Where the case is one where no application is necessary to the court for judgment upon the complaint if no answer had been served, the plaintiff, on decision of demurrer, is only entitled to fifteen dollars for costs before notice of trial.

Where the plaintiff fails to make the indorsement upon the summons as required by section 419 of the Code of Civil Procedure, he is only entitled to fifteen dollars costs before notice of trial

Herkimer Special Term, January, 1881.

John C. Fulton, for plaintiff.

G. M. Allen, for defendant.

HARDIN, J.-This is a motion made to set aside or review taxation of costs. When the demurrer was decided, costs

Adams agt. Ward.

were awarded to the plaintiff. That was proper, though an issue of fact was left to be determined upon a trial (Sec. 3232 of Code of Civil Procedure; 76 N. Y., 314, Cambridge Valley R. R. agt. Lynch, decided in 4th dept. and affirmed). That exercise of discretion cannot be reviewed upon this motion (Stevens agt. Veriane, 2 Lansing, 92; 14 Hun, 477, op. HARDIN, J.).

The items for copies of documents "cannot be allowed without an affidavit that it or they were actually and necessarily used or obtained for use." Such an affidavit is required by section 3267 of the Code of Civil Procedure. None such was furnished and the taxation was therefore irregular, and as the practice is new under the section quoted, it is proper that the parties should be again heard by the clerk upon such papers as they may submit upon a fresh taxation. Upon the taxation to be had, the clerk will tax costs before notice, after notice, and for trial of an issue of law. The question made by the defendants as to the costs before notice and after notice of trial must be ruled against the defendant. The plaintiff drew the demurrer and served it and noticed the argument thereof. For such services he is, by the well settled practice, entitled to the costs before and after notice of trial, as well as twenty dollars for a trial of an issue of law ("Anon.," 3 Sanford, 756; Van Valkenburgh agt. Van Schenck, 8 How., 272; Crary agt. Norwood, 5 Abbott, 220).

Upon the papers now produced upon this motion, it seems to be apparent that the case is one where no application was necessary to the court for judgment upon the complaint if no answer had been served (Sec. 420 of Code). Besides, the summons which is produced seems to have a manuscript indorsement on it of the words "summons and complaint." Thus it would seem it was a case where the plaintiff should have fifteen dollars instead of twenty-five, as stated in the bills of costs

Besides, the plaintiff made no indorsement upon the summons, as required by section 419 Code of Civil Procedure; therefore, as the papers now appear, the plaintiff was only entiVOL. LX

37

Matter of One Hundred and Thirty-eighth Street.

tled to fifteen dollars for costs before notice of trial.

However,

as a retaxation is to be ordered, the clerk will consider the question as to what the item should be when the parties appear before him with fresh papers. A retaxation is ordered before the clerk of Jefferson county upon five days' notice. The defendants are allowed ten dollars costs of this motion, which may be offset against the plaintiff's costs, as they shall be ultimately taxed by the clerk. After service of a copy of this opinion, the clerk of Jefferson county may enter an order in accordance therewith.

SUPREME COURT.

MATTER OF ONE HUNDRED AND THIRTY-EIGHTH STREET, &c.

Constitutional law. - Practice in street-opening matters in New York city. Chapter 604, Laws of 1874, entitled "An act to provide for the surveying, laying out and monumenting of certain portions of the city and county of New York, and to provide means therefor," is not unconstitutional for the reason that being a local act the subject of opening streets is not expressed in its title as required by section 16 of article 3 of the constitution.

Objections and affidavits in opposition to the report of the commissioners of estimate and assessment, which were not presented to the commissioners within the time or in the manner required by the statute cannot be received upon a motion to confirm their report, a sufficient excuse not being alleged for the omission.

The report of the commissioners will be regarded with the same or even greater consideration than the verdict of a jury on the question of the value of the property taken or amount assessed, and unless some wrong principle has been adopted in estimating awards granted or assessments imposed, the report will be confirmed.

Special Term, November, 1880.

On the 17th day of November, 1880, the commissioners of estimate and assessment presented their report to the court

Matter of One Hundred and Thirty-eighth Street.

for confirmation. Assessments for benefit were levied upon the property adjacent to the streets and upon the city. The corporation counsel asked leave to object to part of the report which awarded substantial awards for portions of land in One Hundred and Thirty-eighth street, and to read certain affidavits which had not been submitted to the commissioners in support of the objection that these lands had been dedicated. Various property owners appeared by counsel, some in favor of the motion to confirm and others in opposition thereto.

The nature of the objections sufficiently appear in the opinion.

James A. Deering and John C. Shaw, for property owners, moved for confirmation of report.

William S. Tedball, E. Huerstel, Ernest Hall and George E. King, for motion.

William C. Whitney, corporation counsel, and Arthur Berry, for the mayor, &c., opposed.

John H. Strahan and William J. Marvin, for property owners, opposed.

LAWRENCE, J.-The claim that the act of 1874 under which these proceedings were instituted is unconstitutional, for the reason that, being a local act, the subject of opening streets is not expressed in its title as required by section 16 of article 3 of the Constitution, cannot, in my opinion, be successfully maintained. The title of the act is "An act to provide for the surveying, laying out and monumenting of certain portions of the city and county of New York, and to provide means therefor" (Laws of 1874, chap. 604, p. 831).

The section of the Constitution with which this act is said to fail to comply, has often been the subject of consideration