FIRST DEPARTMENT, NOVEMBER TERM, 1880. 94.) At all events there is no such fair and snbstantial title to the center of the party wall, as the purchaser had a right to expect. It is well settled that a purchaser at a judicial sale will not be compelled to accept a doubtful title. (Jordan v. Poillon, 77 N. Y., 518.) Nor should he be compelled to accept anything less than he bargained for. Here he bid for a house which was to give him his equal share of both a northern and southern party wall. If compelled to complete, he will only get a house (according to the courses and distances), with one inch of one wall and eleven inches of the other. This was a material defect (Stokes v. Johnson, 57 N. Y., 673), which, if known, would undoubtedly have affected the bidding. Whether the peculiar reference to the party wall can overrule the clearly expressed courses and distances, is a question which, if not answered at once in the negative (upon the authority of the cases above cited), is at least involved in such uncertainty as to justify the purchaser in his refusal to take." Walter Edwards, Jr., for William F. Lee, purchaser, appellant. Rastus T. Ransom, for the plaintiff, respondent. Opinion by BARRETT, J.; DAVIS, P. J., concurred. Present-DAVIS, P. J., BRADY and BARRETT, JJ. Order reversed, with $10 costs and disbursements, and motion denied. FIRST DEPARTMENT, NovEMBER TERM, 1880. SPENCER ERVIN AND OTHERS, RESPONDENTS, v. THE OREGON STEAM NAVIGATION COMPANY, IMPLEADED, &c., APPELLANT. Service of a summons upon a foreign corporation by serving its president-right of its president to resign to avoid service-what resolution does not so dissolve a corporation as to render it impossible for its officers to thereafter resign. APPEAL from an order made at Special Term, denying the motion of the Oregon Steam Navigation Company to set aside the alleged service of the summons and complaint herein upon it. The court at General Term said: "On this appeal it appears that the summons and complaint was served by delivering a copy thereof to Mr. Villard, as president of the company, on June 21, 1880. Mr. Villard had been the president and one of the directors of the company up to June 15. On that day his resignation was presented, both as president and director, to the board of directors, at a meeting of such board, and the same was then and there accepted by resolution of the board. "It is claimed, however, on the part of the plaintiff, that the resignation and its acceptance were made with a view to prevent the service of a summons and complaint upon Mr. Villard as president. This, we think, cannot be a material question, if, in fact, the resolution was actually made and accepted, so that he ceased to be president, and of that fact there seems to be no doubt upon the affidavits contained in the moving papers. The resignation was complete and effective on its acceptance by the board of directors, and Mr. Villard ceased to be president, unless the views expressed in the opinion of the court below be correct, that he had become incapable of making the resignation, and the board had become incapable of accepting it, for the reason therein stated. The reason given, is that the corporation had dissolved on March 31, 1880, by resolution adopted under the laws of Oregon, by the board of directors on that day. That resolution was in the following form: 'Resolved, that this company, the Oregon Steam Navigation Company, incorporated October 18, 1862, be and the same is hereby FIRST DEPARTMENT, NOVEMBER TERM, 1880. dissolved, to take effect upon the sale and transfer of its property, the settling of its business and the division of its capital stock.' "The conditions of dissolution expressed in the resolution do not seem to have been completed. The president and secretary of the company were authorized by resolution of the board to proceed with all practicable dispatch to collect all the outstanding accounts and demands due the company, and to settle and pay its debts and liabilities. What progress they had made in this direction is not shown. It seems very clear that the corporation cannot be considered as dissolved to such an extent that its officers could not be changed by their resignation and the appointment of others, or in any other lawful manner. The only effect of the resolution of dissolution would be, it seems to us, to deprive the corporation of the power of engaging in new business, and to leave it clothed with full power, so far as necessary to close up all its affairs, pay off its debts, and distribute its property, and that for that purpose, the board of directors continued to exist; and it would seem to follow as a necessary consequence, continued to have authority to fill any vacancy occasioned by death, resignation, or otherwise. "What Mr. Villard's private motives or purposes in resigning were, is not material, because they do not affect the rights of the corporation itself, which is alone interested in the manner in which it may be sued. It is claimed by the respondent, that the president and directors of the company occupied the relation of trustees upon the adoption of the resolution of dissolution, and had no power by their own act to escape from the responsibilities of that relation. Assuming this position to be well taken, it does not follow that the corporation can be sued by service upon one of such trustees, although the trustees and each of their number might be liable to an action for any abuse of his powers and duties. But there was, in fact, no dissolution, because the conditions upon which it was to take effect had not been performed. "We are constrained to the opinion, that the service of the summons and complaint were not regular, and that the motion should have been granted by the court below.” A. H. Holmes, for the appellant. FIRST DEPARTMENT, NOVEMBER TERM, 1880. Thomas H. Hubbard, for the respondents. Opinion PER CURIAM. Present-DAVIS, P. J., BRADY and BARRETT, JJ. Order reversed, and motion granted, with $10 costs and disburse ments. CHARLES E. JENKINS, RESPONDENT, v. RUSSELL W. ADAMS AND OTHERS, RESPONDENTS. Code of Civil Procedure, § 66, as amended in 1879—when an attorney must have given notice of the assignment of a part of the recovery to him in order to justify his moving to set aside a settlement entered into between the parties. APPEAL from an order denying the motion of Messrs. Townsend and Dyett, plaintiff's attorneys. to set aside a settlement of the case between the parties, and to be permitted to proceed therewith in their own interest. This, The court at General Term said: "This action was lawfully and properly settled between the parties, without the intervention of the plaintiff's attorneys. There was no intention upon the part of the defendants to cheat these attorneys out of their costs. On the contrary, the defendants had paid them, prior to the settlement, and as a condition of pleading a discharge in bankruptcy, the entire costs of the cause. The attorneys, however, claim that in addition to the costs they were entitled to one-half of the recovery. under a special agreement with the plaintiff. But of this agreement the defendants had no notice until after the settlement was made and the discontinuance entered. It is contended that under section 66 of the Code of Civil Procedure, the law gave the notice. It is true that this section gives the attorney a lien upon his client's cause of action. But the act is silent as to its extent or character. Doubtless it was intended to confer upon the attorney the same rights, with regard to the cause of action, as he had previously possessed with regard to the judgment. Now, it was always the rule that a special interest in the claim and judgment could only be pro FIRST DEPARTMENT, NOVEMBER TERM, 1880. tected by notice. This rule is equally applicable to the new lien upon the cause of action, created by the section in question." A. R. Dyett, for Townsend & Dyett, appellants. Edmund Wetmore, for defendants, Adams & Rogers, respond ents. David Tomlinson, for plaintiff, respondent. Opinion PER CURIAM. Present-DAVIS, P. J., BRADY and BARRETT, JJ. Order affirmed, with $10 costs and disbursements. 22 601 FREDERICK C. LINDE AND OTHERS, APPELLANTS, v. JOSEPH Complaint in an action to restrain the use of a trade-mark—when it states facts sufficient to constitute a cause of action. APPEAL from a judgment entered at Special Term, dismissing the complaint herein upon the pleadings and the opening of counsel; and also from an order granting an additional allowance. The court at Special Term said: "There is no finding of facts, or conclusions of law, by the court below in this case. No part of the opening of counsel is given. The dismissal of the complaint must, therefore, be regarded as made upon the ground that the complaint does not state facts sufficient to constitute a cause of action, because we must assume that the counsel, in his opening, stated substantially the same facts alleged in the complaint. On carefully examining the complaint, we are of the opinion that this ground cannot be sustained. The complaint alleges that the defendants wrongfully printed and used, and continued to use tobacco sample tickets in imitation of the plaintiffs' tobacco sample tickets, with intent to defraud and deceive the public and buyers and 127a 559 |