upon its face is not such an agreement as would be expected in the case of an agreement to purchase stock from a stockholder. It bears all the earmarks of a corporation subscription, and I am certain that at the time the agreement was intended by the parties as a subscription to new stock which was to be issued by the steel corporation.

[3] There was a contract between the parties subsidiary to this subscription agreement, which was, in substance, that the defendant was to lend the plaintiff $10,000 on his promissory note. Although the receipt is not accurately worded, the intention clearly was that the $10,000, so lent, was to be used to apply upon the purchase price of the stock subscribed for by the plaintiff. The note was given to the defendant by the plaintiff without his handing over to the plaintiff the $10,000 in question; but, by the transaction, the defendant was authorized to deposit $10,000, the proceeds of the note, with the Oswego Trust Company, to be there held until the stock should be issued. This, however, the defendant did not do. What he did was to negotiate the note and lend the proceeds of the note to the Fulton Steel Corporation. This was entirely unauthorized. It was a diversion of the proceeds from the intention of the parties. The Fulton Steel Corporation never accepted the subscription agreement, and never allotted to the plaintiff any stock thereupon. On March 14, 1918, an increase of the capital stock of $100,000 of preferred and 4,000 shares of common stock was made, and all the preferred stock was issued to the defendant's representative, in consideration for the cancellation of a loan of $120,000, or thereabouts, previously made by the defendant to the corporation. The stock subscribed for was never issued to the plaintiff, or tendered to him. No certificate for any further increase of the capital was ever filed with the public authorities, although a resolution approving a further increase in the authorized capital of the company was adopted at stockholders' and directors' meetings held July 8, 1918. After the time which has now passed (a receiver having meanwhile been appointed for the Fulton Steel Corporation), the subscription has lapsed. There never has been any stock issued to the purchase of which the note, or the proceeds of its discount, has been applicable. The defendant has failed to give to the plaintiff any consideration whatever for the note, and the plaintiff may maintain this action for its cancellation. The negotiation of the note, whereby it has become impossible for the defendant to surrender it, does not constitute a defense. It does, however, affect the relief which can be granted.

The plaintiff should have judgment adjudicating that there has been a diversion of the note by the defendant, and that the note is void in case it hereafter comes into the ownership and possession of the defendant. The judgment should also contain a provision that if, hereafter, the plaintiff pays the note, application may be made upon the foot of this judgment for a money judgment against the defendant for the amount which the plaintiff shall thus have paid.

Findings should be drawn in accordance with this opinion.

In re CORPORATION COUNSEL OF CITY OF NEW YORK.

In re ATTORNEY ST.

(Supreme Court, Appellate Division, First Department. March 7, 1919.) 1. EMINENT DOMAIN 271-CLOSING OF STREETS-DAMAGES.

Where a city actually closed a street before resolution therefor was passed and map filed, such closing was a trespass, and the city is liable to abutting owners for all damages from the closing, in addition to compensation for the easements.

Where a city, after closing a street, opened a clearance way for the benefit of property owners, held, that the award of damages for injury to easements of property owners cannot be diminished by reason of the opening of the clearance way, as the easements were extinguished at the date of the filing of the map showing the change in the street, and the claims for damages were then vested in the owners of the easements, who might dispose of their property without the awards passing to their grantees.

Merrell, J., dissenting.

Appeal from Special Term, New York County.

In the matter of the application of the Corporation Counsel as to the closing of Attorney Street. Gertrude L. Hoyt and others, Louis Perlstein and others, and Kamantz Podolsky and others, claimants of one or more damage parcels, separately appeal from an order of the Special Term overruling their objections to the report of commissioners of estimate and assessment and confirming the report. Reversed, with directions.

Argued before CLARKE, P. J., and LAUGHLIN, PAGE, SHEARN, and MERRELL, JJ.

Truman H. Baldwin, of New York City, for appellants Hoyt and others.

Raphael Tobias, of New York City, for appellants Perlstein, Podolsky, and others.

Joel J. Squier, of New York City, for respondent.

LAUGHLIN, J. The city of New York, for the purpose of constructing, using, and maintaining the Williamsburg Bridge over the East River, acquired title by condemnation proceedings to a strip of land in the borough of Manhattan 150 feet in width along the southerly side of Delancey street, from Clinton street easterly to the East River, excepting that part thereof which had been acquired theretofore for public street purposes. Attorney street had been opened and was in use as a public street for upwards of 100 years, and ran northerly and southerly next easterly of Clinton street. The approach to the bridge was to pass over Attorney street, and in constructing the bridge and effecting changes of grades of other streets incident thereto it became necessary to close 122 feet of that street extending southerly from the northerly line of the 150-foot strip. On the 6th day of March, 1906, the board of estimate and apportionment duly adopted a resolution

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closing that part of Attorney street. That resolution was duly approved by the mayor on the 19th of the same month, and a map showing the closing was duly filed on the 16th of July, 1908. The 122 feet of Attorney street had been completely closed to public travel, however, by the erection of a fence across the southerly end thereof on the 26th of June, 1907, and it thereafter remained closed and subsequently a permanent retaining wall was constructed across it at that point.

After erecting the retaining wall, the city laid a sewer from Attorney street easterly to Bridge street, which was the next street, and was not cut off by the bridge, and a water main from Attorney street westerly along the southerly 28 feet of the premises thus acquired for bridge purposes, and constructed a sidewalk from Attorney street both easterly and westerly over said 28-foot strip at the southerly side, and placed curbing and asphalted the remaining part thereof for vehicle traffic. These improvements were not completed until the latter part of November, 1908, and until that time the 28 feet of Attorney street next southerly of the closed part of the street, and lying between parcels so acquired for bridge purposes, and the outlet therefrom to the east and west over the premises so acquired for bridge purposes, had been completely obstructed; but since that time there has been this outlet to the east to Bridge street, and to the west to Clinton street, from the northerly end of Attorney street as so closed. The damage parcels in question all lie southerly of the part of Attorney street so closed, and abut on Attorney street in the block in which it was closed.

The city failed to institute proceedings to have the damages to the easements of the appellants by the closing determined pursuant to the provisions of chapter 1006 of the Laws of 1895 until it was compelled so to do by mandamus in a proceeding instituted by the appellant Hoyt. In re Hoyt (Closing Attorney Street), 162 App. Div. 469, 147 N. Y. Supp. 599, affirmed 213 N. Y. 651, 107 N. E. 1079. The facts with respect to the closing of Attorney street and the opening of these outlets in the same block accessible to the appellant Hoyt were presented in opposition to her motion for a writ of mandamus, and it was held that she had easements in that part of Attorney street which was closed, for the reason that she was entitled to access to and from her premises both ways, at least in the block in which her premises were, and that the city had acquired the premises for the bridge in fee simple absolute, and therefore her use of the outlets over part of these premises was by sufferance only. It was therefore held that she was entitled to some award for damages, and no opinion was expressed with respect to the amount of the damages. Thereafter, and on the 31st day of March, 1915, on the petition of the city, the order appointing the commissioners was made.

In the meantime, with a view to minimizing the awards to claimants for damages to their easements by the closing, the city attempted to have the 28-foot strip appropriated for street use without having it condemned for public street purposes. On the 19th of March, 1915, the board of estimate and apportionment, purporting to act pursuant to the

174 N.Y.S.-52

provisions of section 442 of the Greater New York Charter (Laws 1901, c. 466), adopted a resolution with a view to changing the map or plan of the city by establishing the lines and grade of an unnamed street. according to a map or plan signed by the acting secretary of the board. and dated February 6, 1915, which embraced these outlets and designated them "South Clearance Roadway," and gave notice of a public hearing thereon for April 16, 1915. After affording interested parties an opportunity to be heard, pursuant to said resolution, the board on April 16, 1915, adopted a resolution changing the map or plan of the city accordingly.

On the 5th of May thereafter, the commissioner of bridges wrote the commissioners of the sinking fund, stating that at the request of the corporation counsel he had submitted said plan to the board of estimate and apportionment, that the lands had been acquired for the bridge, but were no longer required for bridge purposes, and, as they had been laid out as a street, he requested that the sinking fund commissioners, pursuant to section 205 of the charter, which authorizes said commissioners "to assign to use for any public purposes any city property, for whatsoever purpose originally acquired, which may be found by the department having control thereof to be no longer required for such purpose," assign them to the president of the borough of Manhattan for street purposes. On the 19th day of May, 1915, the commissioners of the sinking fund adopted a resolution pursuant to said section, assigning these lands "to the president of the borough of Manhattan." The president of the borough of Manhattan had authority, under section 383 of the charter, to improve and maintain in repair all public streets within the borough. It does not appear that any action was taken by him in the premises other than by permitting the premises to continue to be used as they then were used by the public. These facts were all shown before the commissioners, over objection and exception duly taken by the appellants, and other facts were presented tending to show recognition of the street as thus laid out by some of the appellants and by the building department of the city.

[1, 2] It appears by a formal ruling of the commissioners that they made the awards on the theory that the city was liable only for the darnages to the easements of the claimants caused by such closing of the street as occurred after the filing of the map, and that they assumed that the claimants were not entitled to any award for such closing as had taken place before that time. That, manifestly, was error. Το the extent that there was a closing before the filing of the map, it was a trespass, and the commissioners should have made their awards on the theory that there was no closing until the map was filed. Counsel for the city contended before the commissioners that they should offset against the damages to the easements of the appellants which had accrued on the filing of the map (Matter of Walton Ave., 131 App. Div. 712, 116 N. Y. Supp. 471, affirmed 197 N. Y. 518, 90 N. E. 59; Matter of Newton Ave. [Harris], 173 App. Div. 23, 159 N. Y. Supp. 484; Matter of Newton Ave. [Van Cortlandt], 173 App. Div. 32, 159 N. Y. Supp. 478, affirmed 219 N. Y. 399, 114 N. E. 837; Matter of City of New York [151st St.], 149 App. Div. 64, 133 N. Y. Supp. 894), the

benefits that accrued to the parcels of the claimants from these outlets subsequently afforded them, and the awards were made on that theory. It is not entirely clear that the "South Clearance Roadway," by the proceedings to which reference has been made, has become a public street, for the city has received no compensation therefor (Matter of Mayor, etc., 186 Ñ. Y. 237, 78 N. E. 952; Const. art. 8, § 10); but, in the view I take of the case, it is not necessary to decide whether, by virtue of these statutory provisions and the action taken thereunder, or on the theory of estoppel or otherwise, said 28-foot strip has become dedicated in perpetuity for public street purposes, for I am of opinion that the claimants were entitled to be awarded the damages to their easements as of the date when they were extinguished by the filing of the map (Matter of Walton Ave., supra; Matter of Newton Ave. [Harris], supra; Matter of City of New York, supra). The commissioners have no equity powers. It is authoritatively settled by the decision cited that the claims for damages became at once vested in the owners of the premises at the time of the filing of the map which extinguished the easements, and that they could then sell and convey, and that the right to the awards would not pass to the grantees, excepting under extraordinary circumstances giving rise to an estoppel as between grantor and grantee with respect thereto. The fact that these owners did not convey before the alleged benefits upon which the right to offset is claimed accrued to the premises cannot affect their rights, which had become fixed and vested before. Such a ruling would penalize them for retaining title. We have examined the evidence offered with respect to the damages, and believe that the appellants have grossly exaggerated their claims; but since the awards were made on erroneous principles they cannot be permitted to stand.

The order must therefore be reversed, with $10 costs and disbursements to appellants, and, in accordance with the practice in such cases (Matter of Collis, 144 App. Div. 382, 129 N. Y. Supp. 214), the matter must be referred to new commissioners to be designated in the order. Settle order on notice.

CLARKE, P. J., and PAGE and SHEARN, JJ., concur.
MERRELL, J., dissents.

WINCH v. WARNER.

(Supreme Court, Appellate Division, First Department. March 7, 1919.) 1. WORK AND LABOR 11-REASONABLE VALUE OF SERVICES-QUANTUM MERUIT.

Where contract provided that employé was to receive the reasonable value of his services in stock of a corporation, without specifying number of shares, employé, upon rendering services, could recover reasonable value thereof, where the parties could not agree as to the amount of stock that would be adequate compensation.

2. WORK AND LABOR 10-RECOVERY ON QUANTUM MERUIT.

Employer, who accepts benefit of employé's services, must pay therefor on quantum meruit, if the agreement as to compensation was void or unenforceable for indefiniteness.

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