FIRST DEPARTMENT, JANUARY TERM, 1875. treasury of the other corporation, and consequently the plaintiffs, as stockholders of the latter, have not been benefited. The plaintiffs and their associates have none of the property of this defendant, or the proceeds thereof, in their hands'; and if the complaint is true, and The Old Dominion Steamship Company is a loser by reason of its fraudulent attempt to entail a loss upon others for its own advantage, it will endure only that which it deserves to suffer. Third. The demurrer of Heineken & Palmore having been sustained at Special Term, upon the ground that the facts stated in the complaint against them, "do not constitute a cause of action with which the other defendants are concerned in this action," causes of action, common to all the defendants, are alone left in the complaint. The various orders overruling the demurrers, should be affirmed, with costs. MEMORANDA OF CASES NOT REPORTED IN FULL. JEDEDIAH H. LATHROP AND OTHERS, RESPONDENTE, v. MOSES H. BRAMHALL AND OTHERS, APPELLANTS. Evidence, admissible against any one defendant — reservation of decision on admission of declarations — against whom admissible. If evidence offered is admissible for any purpose or against any one of several defendants, the referee is not bound to declare its effect. The reservation of the decision upon the admissibility of evidence when objection is taken, finds no favor at the hands of the appellate tribunals. The party objecting has a right to a decision at once upon such objections. The general rule that a declaration is only good as against the person making it, is subject to various limitations; and a statement made by a person in the presence of his associates and acquiesced in by them, is admissible against them. APPEAL from a judgment for plaintiff, entered on a referee's report. The action was brought to recover the balance remaining unpaid of the price agreed upon for the transfer of certain stock, and the dispute was whether the sale was made to them jointly or with defendant Bramhall alone. J. L. Cadwallader, for the appellants. C. F. Southmayd, for the respondents. Opinion by BRADY, J. DAVIS, P. J., and DANIELS, J., concurred. Judgment reversed as to the defendant Delafield, and affirmed as to the other defendants. FIRST DEPARTMENT, JANUARY TERM, 1875. GEORGE H. THOMPSON, APPELLANT, V. A. F. LEASTEDT, HENRY STEVENS AND JOHN STEVENS, RESPONDENTS. Will - declaration of testator on execution of — how proven. The statute does not necessarily contemplate that a testatrix should declare, "in words," an instrument to be her will. It is enough that the decedent makes known to the witnesses by acts and words that it is regarded and accepted as her will, and that the witnesses subscribed it as such at her request.* This may be established as matter of fact by one of the witnesses, even when the other has forgotten what transpired. † APPEAL from a decree of the surrogate of the county of New York, refusing probate to an instrument propounded as the last will of Eliza Leastedt, deceased. Augustus V. Wyck, for the appellant. Franklin Bartlett, for the respondents. Opinion by DANIELS, J. DAVIS, P. J., and BRADY, J., concurred. Decree reversed, and proceedings remitted to Surrogate's Court, with direction to admit the will to probate. JOHN S. McLEAN, EXECUTOR, ETC., RESPONDENT, v. WILLIAM T. MCLEAN, APPELLANT, AND OTHERS. Will-action for construction of — what questions pertinent in — matters left to dis cretion of executor. In an action brought to obtain a construction of a will by which one-fourth of the residue of the testator's estate was devised and bequeathed to his executor in trust for the life of one of the defendants in the action, with power to the executor to convey such portion to defendant at any time when the executor should be satisfied that he would make a prudent and proper use of it; held, that that portion of an answer asking an adjudication that the executor was * Remsen v. Brinckerhoff, 26 Wend., 325; Gilbert v. Knox, 52 N. Y., 125; Matter of Will of John Kellum, id., 517. + Trustees of Auburn Seminary v. Calhoun, 25 N. Y., 422. FIRST DEPARTMENT, JANUARY TERM, 1875. satisfied that the defendant would make a prudent and proper use of such part of the estate, was properly stricken out. It was a matter discretionary with the executor, and formed no part of the controversy which the action sought a settlement of. APPEAL from an order striking out a portion of the answer of the defendant William T. McLean. F. & E. Tillou, for the appellant. Alfred W. Lowerre, for the respondent. Opinion by DANIELS, J. DAVIS, P. J., and BRADY, J., concurred. Order affirmed, with ten dollars costs, besides disbursements. EDMUND COFFIN, APPELLANT, v. RICHARD COKE, GovERNOR OF THE STATE OF TEXAS, THE STATE OF TEXAS AND OTHERS, RESPONDENTS. APPEAL from an order denying a motion for an injunction and receiver, in an action brought to recover compensation for services alleged to have been rendered by the plaintiff as agent, and to have the amount due him determined and paid to him. The plaintiff was employed to negotiate the sale of certain Texas State bonds, under an agreement by which his compensation for all services and expenses was to be a percentage not to exceed two per cent of the proceeds of the bonds sold, and that the State of Texas should in no event be responsible for more than two per cent of the proceeds of the bonds sold. He never sold any bonds, and the agency was, before the commencement of this action, taken out of his hands. The court was of opinion that the plaintiff was concluded by the agreement, and could only recover in case of a sale by him. The court did not consider the question of its jurisdiction of an action brought against the State of Texas. FIRST DEPARTMENT, JANUARY TERM, 1875. Edmund Coffin, Jr., for the appellant. Rastus R. Ransom, for the respondents. Opinion by DANIELS, J. DAVIS, P. J., and BRADY, J., concurred. Order affirmed, with ten dollars costs, besides disbursements. CLINTON H. BLAKE AND ANOTHER, RESPONDENTS, v. SIEGEL BERNHARD, APPELLANT. Attachment—when fraudulent design sufficiently shown. THIS was an appeal from an order denying a motion to set aside an attachment granted on the affidavit of the plaintiff, averring that he had been informed and believed that the defendant contracted the debt fraudulently; that the defendant was then engaged in putting all his property out of his hands; and that defendant proposed to refuse payment of his obligations, and defraud his creditors, in pursuance of a plan determined upon before the purchase of the goods sold him by the plaintiff. It also alleged that the plaintiff's father informed deponent that he had called on defendant and charged him with the facts stated, and defendant did not deny their truth, but promised to call and see deponent in relation to an immediate payment of his claim. The affidavit was corroborated by that of the plaintiff's father. Held, that sufficient grounds for the issuing of an attachment had been shown, and that the omission by the defendant to deny the charges of plaintiff's father, and his promise to call and pay the claim, were an acknowledgment of their truth, and made out a prima facie case of fraudulent design. Adolph L. Sanger, for the appellant. George S. Sedgwick, for the respondents. Opinion by BRADY, J. DANIELS, J., concurred. Order affirmed, with ten dollars costs, besides disbursements. |