FIRST DEPARTMENT, JANUARY TERM, 1875. DANIEL RICHTER, RESPONDENT, v. MARX WISE, APPELLANT. Attachment — Affidavit must show the facts constituting the cause of action. APPEAL from an order denying a motion to discharge an attachment. The plaintiff's affidavit stated that he had a just cause of action against the defendant, for the amount named in the summons, but did not state the facts constituting the cause of action. The court was of opinion that it was not sufficient to state the amount of the claim, and the legal conclusion that the plaintiff had a cause of action, but that the subject-matter of the claim should be set forth.* Kurzman & Yeaman, for the appellant. Bushnell & Albright, for the respondent. Opinion by BRADY, J. DAVIS, P. J., and DANIELS, J., concurred. Order reversed, with ten dollars costs, besides disbursements; and an order directed, setting aside the attachment, with ten dollars costs. JAMES A. PATTERSON, APPELLANT, v. ALFRED BAKER, RESPONDENT. Complaint - demurrer to. APPEAL from an order sustaining a demurrer to plaintiff's complaint. The action was brought by the plaintiff as owner of the circulating bills of the Mechanics' Bank, incorporated and existing in the State of Georgia, to recover damages for the wrongful use of its property by the defendant and other directors of the bank. The bills are alleged in the complaint to have been acquired by plaintiff, at various times since January, 1860, and the acts complained of are stated to have been performed at various times since *2 Wait's Pr., 146; Zeregal v. Benoist, 33 How. Pr., 129; Code, §§ 229, 227. FIRST DEPARTMENT, JANUARY TERM, 1875. January 1, 1861. The court was of opinion that the complaint should have alleged that the bills were received before January 1, 1861, which it did not, and that without that averment the complaint did not state facts sufficient to constitute a cause of action.* J. S. Winter, for the appellant. Wm. G. Choate and Wm. M. Evarts, for the respondent. Opinion by DANIELS, J. DAVIS, P. J., and BRADY, J., concurred. Order affirmed, with costs. CHARLES F. CONNOLLY, RESPONDENT, v. HENRY F. HAMILL, APPELLANT. Contract-construction of, province of court and not of jury. THIS action was brought to recover for certain iron which the plaintiff alleged he had sold and shipped to the defendant at New York, in conformity with an agreement entered into between them. The defendant claimed that as there had been an unreasonable delay in the delivery of the iron, he was not bound to receive it. That the construction of the contract was for the jury, and that the court erred in taking it from them. The court, after a review of the evidence, was of opinion that it was for the court, and not the jury, to construe the written contract, and also to pass upon the effect of the other evidence in the case. John E. Burrill, for the appellant. Opinion by WESTBROOK, J. DANIELS, J., concurred. Judgment affirmed. * Butt v. Cameron, 53 Barb., 642. FIRST DEPARTMENT, JANUARY TERM, 1875. DANIEL F. RUTHERFORD, APPELLANT, v. REBECCA WHITE, RESPONDENT. APPEAL from an order granting a new trial. The action was brought to recover for a horse and harness and other articles sold as alleged in the complaint to the defendant. The court, after a review of the evidence, was of opinion that there was sufficient evidence to justify the verdict of the jury, and reversed the order granting a new trial, with costs. F. H. Angier, for the appellant. Chapman, Scott & Crowell, for the respondent. Opinion by Brady, J. DAVIS, P. J., and DANIELS, J., concurred. Order reversed, and new trial denied, with costs. Cases DETERMINED IN THE THIRD DEPARTMENT AT GENERAL TERM, January, 1875. JAY GOULD, RESPONDENT, V. THE TOWN OF ONEONTA, APPELLANT. Stock - agreement for sale of, by town — payment of money by purchaser to discharge lien on — right of recovery upon rescission of contract · When town bound by acts of its officers-illegal contract. The commissioners of the defendant having, in its behalf, subscribed for certain stock in the A. & S. R. R. Co., a dispute arose as to the amount due; the company claiming a balance of some $6,000 for back interest, and refusing to issue the scrip until such amount should be paid. Subsequently, the commissioners agreed to sell the stock to one Wilbur, the plaintiff's assignor; and, to enable him to procure a transfer of the same upon the books of the company, authorized him to pay the amount claimed by it to be due, which amount was accordingly paid by him. At the time of entering into the contract, Wilbur gave the commissioners a bond for $500, and his check for the balance, upon the agreement that the check was not to be presented until the stock had been transferred on the books of the company. Subsequently, an action was commenced by the defendant, and an injunction obtained preventing the transfer of the stock to Wilbur, who thereupon rescinded the contract, and brought this action against the town of Oneonta to recover the amount paid by him to the company, and the value of the bond. Held (1), that Wilbur, in paying the money to the company, acted as the agent of the commissioners, and that the transaction was substantially the same as though he had paid the money to them and they had paid it to the company, and that as the defendant had had the benefit of the payment, it was liable therefor to Wilbur; (2), that even if the commissioners had no authority HUN-VOL. III. 51 THIRD DEPARTMENT, JANUARY TERM, 1875. to make the contract, as it was not for cash, still, as it was not immoral, opposed to public policy, or criminal, the plaintiff was entitled to recover what had been paid under it. APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury. H. Sturges, and Bundy & Scramling, for the appellant. This sale or attempted sale of the stock by the commissioners, was a clear violation of the statute, in two particulars: it was not a sale at par, or for cash. (Session Laws, 1857, vol. 1, p. 813, § 6.) A check of a responsible drawer, who has funds to meet it, is not of itself payment until it is in fact paid. (Turner and others v. Bank of Fox Lake, 23 How., 399; affirmed in Court of Appeals, 3 Keyes, 425; 1 Cow., 359; 4 N. Y., 312; Bradford v. Fox, 16 Abb., 51, 53; S. C., 39 Barb., 203; 42 N. Y., 538, 541, 542; 6 Rob., 157; 21 Wend., 211, 215, 218, 219.) These railroad commissioners are required to sell for "cash;" they cannot, therefore, sell on time, and any securities taken by them must be void. (Decker v. Jackson, 16 N. Y., 442; Morton v. Campbell, 14 Abb., 414, and cases cited; S. C., 37 Barb., 179; Webb v. Albertson, 4 id., 51.) This case is not like that of Clarke v. The City of Rochester (28 N. Y., 605). "A special authority must be strictly pursued, and every purchaser is presumed to know that special authority, where it is contained in a public statute.” (Dunning v. Smith. 3 John. Chy., 332; Delafield v. State of Illinois, 8 Paige, 527; S. C., 26 Wend., 192; 2 Hill, 159; Farmers and Mechanics' Bank v. Butchers and Drovers' Bank, 16 N. Y., 137.) Officers of a corporation are special, and not general agents, and have no authority to bind the corporation, except within the limits prescribed by the charter and by-laws. (Adriance v. Roome, 52 Barb., 399.) "The principal is not bound by the special acts of an agent beyond his authority." (Munn v. Commission Co., 15 John., 44; Beals v. Allen, 18 id., 363; Scott v. McGrath, 7 Barb., 53; Stringham v St. Nicholas Ins. Co., 3 Keyes, 280; People v. Bostwick, 32 N. Y., 445; Marvin v. Wilber, 52 id., 270.) It is clear, from the foregoing authorities, that this sale, or attempted sale, was void and not binding on the defendant. (Arnot v. Pitston Coal Co., 9 Sup. Court R. [2 Hun], 591, |