consideration, and valid and binding upon the promisor. Hendrickson v. Bender. 466
35 Services consisting of the circulation of peti- tions and presentation of evidence and argu- ments openly before legislative committees is not unlawful in its character. Id.
36 The giving of new notes, in settlement of a pending suit, furnishes no consideration for an agreement to delay or suspend the action, or to take such notes in payment of the cause of action. Weil v. Bonner et al. 493
3 The defendant received a draft, payable to other persons, and promised to deliver the same to the payees, but failed to do so, and the draft was afterwards presented to the drawee by some one, and paid, and when called upon by the payees the defendant took the ground that he had, in fact, delivered the draft to the payees. Held, That these facts, as matter of law, made out a prima facie case against the defendant, in an action by the payees; and that the onus was cast upon him to show something discharging him from the liability for the amount of the draft. Hayes
37 In the absence of proof that it was intended as a bet or wager, an optional contract for the purchase or sale of stock at a fixed price, purporting to be based upon a valuable con- sideration, is valid. Story v. Saloman. 502 4 Where defendant, who was indebted to 38 Where a contractor has created an obstruc-plaintiff upon a promissory note, made an tion in the street by placing building material therein, and has failed to inclose and light it, as required by the ordinances of the city, he is liable to the city for the amount of a judg- ment recovered against it by one who has been injured by means of such obstruction. City of Rochester v. Montgomery.
agreement with the husband of plaintiff to sell him a stock of goods and allow the amount of said note upon the purchase price if he would obtain said note and surrender it to him, and after obtaining said note destroyed it and re- fused to carry out the agreement. Held, That the jury were justified in drawing the infer- ence that defendant obtained it with the pre- conceived design to destroy it, and not use it for the purpose for which plaintiff parted with it; that an action for conversion is the proper remedy, and no demand for its return is nec- essary. Powell v. Powell,
1 Where a municipal ordinance provides that the last payment upon contracts for street im- provements shall only be made after an assess- ment has been made and confirmed by a board of officers, no action will lie against the cor-
poration until after the assessment is confirm- ed, even though the board wrongfully refused to proceed with the assessment; the party aggrieved should proceed against the board by certiorari, mandamus or other proper remedy. Tone, admr., v. The Mayor, &c., of N. Y. 66 2 A municipal corporation is not liable for the negligence or omission in the discharge of his public duties of a public officer.
5 An election of a stockholder as trustee will not invest him with the office so as to charge him with its duties and responsibilities, with- out an acceptance on his part. Id.
6 In ascertaining whether the requisite num- ber of stockholders in a corporation organized under the Act of 1848 have joined in a consent to the execution of a bond and mortgage by the corporation, the amount of stock actually issued and owned at the time is to be regarded as the amount of the capital stock. The Greenpoint Sugar Co. v. Whiton.
7 Where the consent filed is defective in not setting forth the amount which the bond and mortgage are to be given to secure, such de- fect may be remedied by proof of the debt owing to the mortgagee. Id.
8 To sustain the service of a summons upon a non-resident corporation, where the summons was served upon a director, upon the ground that the defendant then had property within this State, it must appear that the defendant had property within this State of substantial value. Barnes et al. v. The M. & N. W. RR.
9 The unissued bonds of a railroad corporation in the hands of its agents for sale are not property. Id.
10 Parties dealing with a corporation, although retaining advantage from the transaction, are not estopped from setting up that the corpora- tion exceeded its powers, where such act or transaction in excess of its powers was in direct violation of legal enactment. The N. Y. State L. & T. Co. v. Helmer et al. 197 11 Where articles of association for the forma- tion of a corporation, under the law of 1848, were signed, and a copy thereof filed in the office of the Secretary of State, but the origi- nal was not filed in the County Clerk's office, and certificates of stock were issued and de- livered, but before any capital was paid in or officers elected the project was abandoned on discovery of fraud in the representations on which the whole proceeding was based, and the certificates of stock returned, no business having been done at that time, and thereupon other parties attempted, without authority, to act for the corporation. Held, That there was no such user of the corporate franchise as would cure the defect in the organization, or any facts that would estop a party sued as trustee from denying it. De Witt et al. v. Has- tings. 225
12 A company without authority contained in its charter or other legal enactment, and in the absence of a combined consent of the di- rectors and stockholders, cannot by resolution of the directors create preferred stock or give to certain stockholders rights to the exclusion of others. Kent v. The Quicksilver Mining Co. 230
13 All stockholders are entitled to share equal- ly in the net earnings of the company. Id.
14 A cause of forfeiture cannot be taken ad- vantage of, or enforced against a corporation collaterally or incidentally, but only in a di- rect proceeding instituted against it for that purpose by the government creating such cor- poration. In re Petition of the N. Y. Elevated RR. Co. 243
15 Where the property of a corporation is sold by a unanimous vote of those present at a meeting of stockholders, and a resolution is adopted at said meeting declaring the corpora- tion dissolved, such acts of the stockholders are equivalent to a surrender of its corporate rights. Webster v. Turner et al. 260
16 Where no fraud is shown, the acts done at a meeting of stockholders are binding upon a stockholder who voted for them by proxy. Id. 17 An equitable action for contribution by a stockholder of a corporation organized under the General Act of 1848, must be brought against all the stockholders. Clark v. Myers.
18 The relation of such stockholders in regard to debts owing laborers is substantially that of partners. Id.
19 The title to certificates of stock in a corpo- ration cannot be transferred by a person who fraudulently obtains possession of them. Win- ter v. The Belmont Mining Co. 329
20 In such case the omission by the true owner, who held them by a blank indorsement. to cause the stock to be transferred on the books of the company, is not such negligence as to oblige him to bear the loss. Id.
21 An action brought by a creditor of a corpo- ration organized under the act for the forma- tion of manufacturing, &c., and other cor- porations against a trustee, to enforce the liability created by such act for failure to file an annual report, is a personal action to en- force a penalty and does not survive. Rey- nolds v. Mason.
22 Where, at a meeting of a board of directors of a corporation, a settlement is authorized and directed to be made with an employee of his claim for services, an omission to make an entry thereof in the minutes will not invali- date the authority. Courter v. The A. & S. RR. Co. 350
23 An action to collect a debt due to a corpora- tion cannot be maintained by a stockholder unless the complaint shows that the corpora- tion has been applied to to bring the action and has refused to do so. Wilkie v. The Roch. & St. L. RR.
25 Where the name of an individual appears upon the stock-book of a corporation as a stockholder, the prima facie presumption is that he is the owner of the stock, and in an
action against him as such stockholder the burden of rebutting such presumption is upon him. Turnbull, Jr., v. Payson, assignee. 405
26 The defendants were stockholders of a cor- poration organized under an act (Chap. 63, Laws of 1863) the second section of which provided that the corporation should be sub- ject to the obligations and entitled to the bene- fits of the General Act of 1848, relating to mining, &c., corporations. Held, That the stockholders were individually liable to ser- vants and laborers for services rendered to the corporation, although the Act of 1863 did not in terms express such a liability. Wakefield v. Davidson et al. 454
27 In proceedings for voluntary dissolution of a corporation the Court cannot incorporate in the order to show cause, granted in the first instance, an injunction against creditors. In the matter of the French Mfg. Co. 481 See AGENCY, 16; APPEAL TO COUNTY COURT, 2; INJUNCTION, 1; SERVICE.
6 On an appeal to the Court of Appeals from a judgment of General Term, affirming a de- cision at Special Term as to construction of a will, costs in the appellate court will not be awarded to all parties payable out of the es- tate. McLean v. Freeman. 324
7 Where, upon appeal to General Term, a new trial is ordered, costs to abide event, the event upon which the costs of appeal depend is an event which shall entitle the successful party to costs by law. Snyder v. Collins. 391
8 Where upon such new trial the plaintiff re- covers less than $50 he is not entitled to costs of the appeal. ld.
Laws of 1869, when the recovery is less than 9 In an action for a penalty under Chap. 563, $50, the defendant, and not the plaintiff, is entitled to costs. Avery et al. v. Hyde. 10 Where an appeal was in terms from the judgment, as well as from an order, although it was not intended thereby to review the par- ticulars of the judgment, but only the right to any personal judgment against the appel- lant, the costs of such appeal are allowable.
12 In determining the question of costs on ap- peal from a justice's judgment, the interest recovered on the claim is not to be considered. Pearce v. The N. C. R. Co. 566
13 Where on the trial in the County Court the judgment is more favorable to appellant than the offer of respondent by more than $10, the appellant is entitled to costs. Id.
See ATTACHMENT, 4; DIVORCE, 1; HA- BEAS CORPUS, 1; PRACTICE, 44; SURRO- GATES, 3, 4, 5.
2 Chapter 393, Laws of 1863, does not repeal Chap. 346 of Laws of 1855, but merely im- poses a restricted limitation upon the authority of the Board of Supervisors. ld.
See COUNTY, 1; MANDAMUS, 6.
1 In an action to recover damages for a breach of covenant of seizin and for quiet enjoyment, the plaintiff is entitled to recover the value of the premises at the time of eviction with in- terest. Taylor v. Barnes et al. 12
2 It is competent for the defendant to prove by an adverse witness, with a view to his credibility, that such witness has a cause pend- 2 The rule of damages prevailing in such cases, ing against defendant for a similar cause of by which the recovery is limited to the pur-action, and for plaintiff to give any evidence chase money paid and interest, does not apply tending further to explain and qualify the tes- to a case of an executory contract, where the timony of such witness. vendor has sold land to which his title is not perfect and which he undertakes to make perfect. Id.
CRIMINAL PRACTICE AND PLEADING. 1 A complaint before a police justice charging the accused with a misdemeanor in violating an ordinance of the Health Department of the city of New York, to be sufficient, must show the substance of that part of the ordinance which has been violated, with a reference to the title, date, or section. The People ex rel. 177
Lynch v. Justices of Special Sessions.
2 The prisoner was indicted, under Chap. 74, Laws of 1854, for an assault with a sharp dangerous weapon. No evidence was given as to the precise character of the weapon. Held, That the jury might infer the character of the People v. Casey. weapon from the nature of the injury. The
3 One jointly indicted with another is com- petent as a witness for the prosecution, al- though no nolle prosequi has been entered and no formal motion made to admit him as such witness. Taylor v. The People. 359
4 Where the conviction has been regular, but the sentence wrong, and the matter comes up on a bill of exceptions, the Court has power to remit the record to the Court below for proper sentence. Leishman v. The People.
436 4 A judgment in such action which directs a sale of the property by a referee, as under an ordinary judgment of foreclosure, is erroneous. It should simply declare the conveyance fraudu-5 Where the prisoner was indicted and pleaded lent and void, and leave the plaintiff to his remedy by execution. But the Court may also appoint a receiver, direct a conveyance to him, and vest him with power of sale and of application of the proceeds. ld.
5 A creditor has no standing in Court to reach equitable assets, until his remedy at law is exhausted, nor to attack a fraudulent transfer of the property of his debtor until after judg- ment. Conner v. Weber; Craig v. Weber. 457 6 Although a conveyance of property was made before the debt was contracted, yet where it appears that the transfer was made with intent to defraud the creditor, it is void as against him. Shand, exr., v. Hanly. 551
7 Direct testimony of fraudulent knowledge and intent in the parties to the deed is not necessary. Id.
8 Where a deed is set aside as fraudulent and
in the Oyer and Terminer, and was convicted in the Court of Sessions, an objection to the jurisdiction of the latter Court, on the ground that no order transferring the indictment was entered, cannot be first raised in the appellate Court. May v. The People.
6 Whether any order is necessary, quare. ld. See DISORDERLY PERSONS; FALSE IM- PRISONMENT; PERJURY; SEDUCTION, 1, 3; INDICTMENT; CRIMINAL CONVERSATION; FELONIOUS ASSAULT.
1 Where, in an action for damages for breach evidence as to value shows that at the time of of a contract to purchase property, the only refusal the property was worth more than the agreed price, and it is not shown that there was any valid sale at public auction, only nom-
inal damages should be given. Where the agreement was to purchase if defendants were satisfied, they are to decide whether they are satisfied, and it should not be left to a jury to decide whether they ought to have been satis- fied. Gray et al. v. The Central RR. Co. of N. J. 19
2 The rule of law is that the measure of dam- ages, in an action by the owner of property to recover damages for a seizure and sale of property on an execution against a third party, when on such sale the property is purchased by the owner, is the price paid, with interest. De Luce v. Kelly. 32
3 The plaintiff was forcibly ejected from de- fendant's cars. The evidence showed that his hand and side were slightly hurt, and a felon came upon his finger, which was claimed to be a result of the force used to eject him. A verdict for $3,000, under this state of facts, held excessive. Cox v. The N. Y. C. RR. Co. 228
See ATTACHMENT, 1; CIVIL DAMAGE ACT, 3, 5; CONTRACTS, 17; COVENANTS, 2; EVI- DENCE, 2; LEASE, 13, 14; MARINE COLLI- SION, 6, 11; SHERIFFS, 1, 2, 4; SLANDER, 5, 6.
DEBTOR AND CREDITOR.
1 The question as to when a debt becomes due, where a credit of "a few days" has been given, is one of fact. Fonda v. Vischer. 412 2 Where a justice of the peace rendered a judgment in favor of such a claim, where it would have been barred by the Statute of Limitations, unless such credit extended the time forty-one days, it will be assumed, in support of the judgment, that the justice found that it did so extend it.
3 An agreement by a creditor to discharge his debtor from all legal obligations to pay the debt, on the debtor giving his moral obliga- tion to pay when able, is not an absolute dis- charge, but only a suspension of the legal liability until the condition of the debtor is such that a moral obligation to pay would fairly exist. Dambmann v. Schulting. 534
4 The utmost good faith is required of a debtor seeking a discharge from his debt for less than its full amount, and he has no right to permit his creditor to act upon the faith of previous representations which have become untrue by reason of changes in the debtor's affairs.
representatives, heirs or devisees of the grant- or, or by any person claiming under him. ld. 3 Recitals in a sheriff's deed are conclusive as against third parties. Id.
4 In a conveyance, visible location calls con- trol in preference to quantity, course or dis- tance. Robinson et al. v. Kime. 41
5 Where the words "Johnson boundary" are used in a deed, they must be construed as in the nature of a monument, and parol evi-
dence is admissible to establish its location.
7 A sheriff's deed of lands sold on execution, recorded before a prior deed executed by the judgment debtor, passes the title as against the grantee under such prior deed. Hetzell v. Barber. 141
8 Where an absolute deed in blank, with con- dition that grantee is to assume a mortgage on the premises, is given, a person who consents to the insertion of his name as grantee, and accepts the deed, becomes liable for the pay- ment of such mortgage. No agreement made by him with the party from whom he received it will impair the rights of the holders of the 181 mortgage. Campbell v. Smith.
9 The delivery of a deed of land will be pre- sumed, in the absence of evidence, from the concurrent acts of the parties recognizing a transfer of the title. Gould v. Day.
11 He may recover the costs of the foreclosure suit paid by him, although the grantee was not made a party thereto. Id.
12 Under the 1244th Section of the Code of Civil Procedure the ordinary deed is the prop- er one. Randel v. Von Ellert. 253
13 Where a grant of lots under water provides that the grantees shall pay certain quit-rents annually, and also that if at any time it shall appear that the grantees were not, at the date of the deed, seized in fee simple of the prem- ises on the easterly side of high water, and ad- joining the lots conveyed, or should make default in performing their covenants, the grant should be void, and the grantors be forthwith seized of the same, the grantees take a present estate in fee simple liable to be de- feated by a subsequent event. Toule v. Rem
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