Imágenes de páginas

thereto. 18 Wend., 175; 58 N. Y., return the money paid for them 272 ; id., 613.

by plaintiff, with interest. It did Defendant's counsel

counsel claimed not appear that plaintiff had any that the court should have direct knowledge as to the value of the ed the jury to inquire whether the bonds, except what he derived driver was at the time of the in- from defendant, and relying upon jury complained of in a separate, his representations, purchased. . independent business.

Plaintiff held the bonds until Held, Untenable, as such fact July, 1875, when default being had no evidence for its support. made in the interest due plaintiff,

Judgment of General Term, af- wrote to defendant, expressing his firming judgment for plaintiff, dissatisfaction, and giving him affirmed.

thirty days' notice, as reqnired by Opinion by Danforth, J. All the arrangement. The bonds were concur, except Rapallo, J., ab- subsequently tendered to defendsent.


F.J. Fithian, for applt. STATUTE OF FRAUDS.

Alexander B. Johnson, for N. Y. COURT OF APPEALS, respt. Fitzpatrick, respt., v. Woodruff,

Held, That plaintiff was entitled applt.

to recover; that his contract with

defendant was not within the Decided Oct. 7, 1884.

statute of frauds. 67 N. Y., 67.79; Complainant purchased certain bonds of de. id., 632. fendant, who agreed that, if plaintiff at any There was no dispute as to the time became dissatisfied with them, he' facts, and no request to go to the would take them back on 30 days' notice, and repay the price paid with interest: jury upon the question whether Two years afterward, default in the pay.

the notice was given within ment of interest on the bonds being made, a reasonable time. Defendant plaintiff gave notice as agreed, but defend. claimed that that question was ant refused to perform his agreement. Held, That the agreement was not within the entirely one of law, and it was so statute of frauds; that the question whether

determined. the notice was given within a reasonable Held, No error ; that the rule, time was one of law, and that plaintiff was that where an option to be exerentitled to recover.

cised, or a condition to be perThis action was bronght to re- formed, is not limited by the agreecover the purchase price of certain ment, the option must be acted bonds. It appeared that plaintiff, upon, or condition performed, or in December, 1872, purchased the abandoned within a reasonable bonds in suit of defendant, the lat- time, if applicable to this case, has ter having promised him, if at any not been violated by the plaintiff. time he became dissatisfied with Wooster v. Sage, 67 N. Y., 67, the bonds, he would take them distinguished. back on thirty days' notice, and Judgment of General Term,


affirming judgment for plaintiff, | ings of the leased road ; that said affirmed.

rent should not be less than $105,Opinion by Miller, J. All con- 000, $70,000 of which was to be apcur.

plied to pay interest on bonds issued by the lessor, and the re

maining $35,000 to be used to pay STOCKHOLDERS.

dividends on its stock. The comN. Y. COURT OF APPEALS. plaint alleged that the lessee had Barr et al., respts., v. The N. Y., lessor for the purpose of controlling

bought up most of the stock of the L. E. & W. RR. Co. et al., it and to avoid paying the rent, the applts.

lessor having become insolvent; Decided Oct. 7, 1884.

that J., as receiver of the E. R. The complaint alleged that the corporation road under the lease ; that the

Co., took possession of the leased in which plaintiffs were stockholders leased road under the lease ; that the their road to the Erie R. Co for a specified property and franchises of the rental, a certain portion of which was to lessee were sold under foreclosure be applied as dividends on the stock ; that and bid in by the defendant, the a receiver was appointed of the Erie Co. to

N. Y., L. E. & W. RR. Co.; that whose rights the other defendants succeeded; that the lessee had obtained con J. was president of said road and trol of the lessor; and the officers of both of the E. R. Co., the lessor, and its companies are the same persons; that officers were the officers and agents a conspiracy

entered into by

of the other defendants, under the defendants to depress the price of the lessor's stock, and to accomplish this they whose control its affairs were ; that refused to pay the rent to be applied to pay a conspiracy was entered into by dividends and those controlling the the defendants to depress the price lessor refused to demand and collect of the lessor's stock, so that they said rent. Held, That an action for an accounting of receints of the leased road and might buy it, and to accomplish for payment of said rent could be main this they refused to pay the $35,tained by plaintiffs as stockholders and that 000 of the rent, agreed to be apthe allegations of conspiracy were material propriated to pay dividends and

the parties controlling the lessor This action was brought to en- refused to collect and demand force certain rights of plaintiffs, said rent. Plaintiffs asked for an acas stockholders of the S., B. & J. counting of the receipts of the leasRR. Co., under a lease of said ed road during the period it was company to the Erie R. Co., of controlled and operated by defendwhich the defendant, J., was ap- ants respectively, and for payment pointed receiver, and to whose of the rent in arrears. rights and liabilities under said William W. MacFarland, for lease the defendant, the N. Y., L. applts. E. & W. RR. CO. succeeded. It Theron T. Strong, for respt. was provided in said lease that the Held, That the plaintiffs had a lessee should pay an annual rent right to maintain this action. Code of 30 per cent. of the gross earn Civ. Pro., S 446.

and proper.

Where the board of directors of Plaintiff brought an action for a a corporation acts in a manner de- limited divorce, and in 1869 obstructive of the rights of other tained a decree, under which she shareholders, or where the major- was given the custody of the chility of the shareholders themselves dren of the marriage. No proviare oppressively and illegally pur- sion was made for the support of suing a course which is in violation plaintiff or the care of the chilof the rights of the other share. dren. In 1879 plaintiff presented holders, and which can only be re a petition to the court, which al. strained by the aid of a court of leged an increase in defendant's equity, an action to obtain relief means, and also concealment by may be maintained by a stock him as to his means at the time holder. 146 Otto, 450.

the decree was granted, and asked Also held, That the defendants for an allowance for the support were properly joined as parties de- of herself and for the care and fendant and that there was no mis education of the children. A ref. joinder of causes of action. 17 N. eree was appointed to take proof Y., 592 ; Code Civ. Pro., § 447. and report, and plaintiff moved

Also held, That the allegations for a confirmation of his report, of conspiracy in the complaint giving her an allowance, as prayed were material and proper ; as mat for in the petition. The motion ter of law an unlawful conspiracy was denied by the Special Term, existed, which affected the inter on the ground that the court had ests of the plaintiff.

no power now to make plaintiff an Order of General Term, revers- allowance by way of alimony. ing order sustaining demurrer, The order of the Special Term was affirmed.

affirmed by the General Term, so Opinion by Miller, J. All con far as it refused plaintiff an allowcur, except Rapallo, J., not vot ance for her own support, and reing

versed it so far as an allowance for the care and education of the chil

dren was denied, and a reference DIVORCE. ALIMONY.

was directed “to ascertain and reN. Y. COURT OF APPEALS.

port a suitable and proper allow

ance for the past and future cusErkenbrach, applt., v. Erken-tody, care and education of said brach, respt.

children since the decree of sepa

ration." Decided Oct. 7, 1884.

Joseph A. Welch, for applt.

J. J. Marrin, for respt. An order directing the payment of alimony

by the husband to the wife cannot be made Held, No error; the authority to after the entry of a decree of separation make the order for alimony asked making no provision therefor; but previ. for must be found in the Revised sion for the support of children may be made, under 2 R. S., 147 $ 59, affirming Statutes, all preceding statutes on S. C., 18 W. Dig., 444.

the subject having been repealed

by chapter 21 of the Laws 1828 at the penitentiary forms no part of the

sentence. (Subd. 549, § 1 Laws of 1829). The Courts in this State have no com

The relator was indicted Nov. mon law jurisdiction over the sub. 24, 1882, for keeping a bawdy ject of divorces, and their author- house from June 12, 1882, to Nov. ity is confined altogether to the 24, 1882. He was convicted Oct. exercise of such express and inci. 11, 1883, and sentenced to be imdental powers as are conferred by prisoned in the Onondago County the statute. 5 Stat, at Large, 399; Penitentiary for the term of one 1 Hopk., 507; 47 N.Y., 138; 59 id., year and to pay a fine of $250, &c. 218; 75 id., 221. No distinction In pursuance of this sentence he between an action for an absolute was taken to said penitentiary and divorce and one for a limited there employed at work. A writ divorce exists as to the allowance of habeas corpus was granted to of alimony after final decree. him, which was dismissed.

Under section 59 of 2 R. S, 147, J. L. Baker, for applt. an order may be made, in an ac

Clarence L. Smith, for respt. tion by a wife for a divorce or Held, No error; that the case is separation during the pendency of governed by the common law, the cause or at its final hearing, Penal Code, $ 719. The common or afterwards, as occasion may re- law remedy by indictment against quire

for the custody, the relator was not abolished or care and education of the children superseded by or inconsistent with of the marriage.”

the provisions of the Code of CrimOrder of General Term, modify- | inal Procedure as to disorderly ing order of Special Term, af persons. firmed.

The provisions of the Revised Opinion by Ruger, Ch. J. All | Statutes (1 R. S., 638) for dealing concur.

with disorderly persons, among whom were persons keeping a

bawdy house, were substantially BAWDY HOUSES.

re-enacted in the Code of Criminal

Procedure ($ 899). The main purN. Y. COURT OF APPEALS.

pose of those provisions is to arrest The People ex. rel. Van Houten,

the disorderly practices named, by applt., v. Sadler, Supt., respt.

compelling a disorderly person to

give security for his good behavior. Decided Oct. 21, 1884.

If he gives the security required

he cannot be punished. If he fails The common law remedy by indictment against keepers of bawdy houses was not

to give the security he may be abolished or superseded hy or inconsistent

committed to the county jail for with the provisions of the Code Crim. Pro. not exceeding six months, from as to disorderly persons. Both proceedings which he may be discharged at any may be taken against the keeper of such a house. The provision of the statute as to

time upon giving security. Code how the person shall be kept and employed Cr. Proc., SS 902, 903,907, 910. The

keeping of a bawdy house was also | dators, applts., v. John Haddon, a misdemeanorat common law and respt. is now made so by the Penal Code

Decided Oct. Sth, 1884. ($ 322), which took effect Dec. 1,

A judgment of a court of a foreign country 1882. The relator, while he kept

is not conclusive upon and will not be enthe bawdy house, could have been forced in the courts of this State unless arrested and dealt with as a disor upon a proper examination it is established derly person, or he could have that the cause of action upon which it was

recovered is one recognized by the common been indicted and punished for

law and the proceeding in which it was keeping such bawdy house. The obtained was one in which a trial was had two proceedings had different ends in accordance with the rules of the common in view and could both be taken

law; and if such is not the case, even the

appearance of the party in the foreign court against one who kept such a house.

will not be regarded as conclusive of his Such person could be arrested as rights or as affecting them at all injuridisorderly and compelled to give ously. the security required, and after Appeal from interlocutory judg. wards indicted and punished for ment sustaining demurrer to 2d, having kept a bawdy house. 3d, 4th and 5th defences contained

The statute under which the in the answer. relator was sentenced provides that This action was brought by the the judge may “sentence such plaintiffs as liquidators of the person to imprisonment in such | City of Glasgow Bank, a foreign penitentiary, there to be received, corporation created by the laws of kept and employed in the manner Great Britain, against the defendprescribed by law and the rules ant as one of the stockholders of and discipline of such peniten- the bank to enforce his individual tiary.It was objected that the liability upon the stock he owned words italicised are not contained as determined by a decree proin the sentence.

nounced against him by the Court Held, That those words are no of Sessions in Scotland, or the part of the sentence, but are sim- | Lord Ordinary. It appeared by ply directory to the keeper of the the complaint that the decree upon penitentiary, prescribing what which the action was brought was shall be done with the prisoner obtained under $ 121 of a statute and how he shall be kept.

of the Kingdom of Great Britain, Order of General Term, affirming known as the “Companies Act of order dismissing writ, affirmed. 1862,” authorizing the pronounc

Opinion by Earl, J. All concur, ing of such a decree by the Court except Rapallo, J., absent.

of Sessions in Scotland, or the

Lord Ordinary, after the dissoluFOREIGN JUDGMENT.

tion of a corporation, upon the

production by the liquidators of a N. Y. SUPREME COURT. GENERAL list, certified by them, of the names TERM. FIRST DEPT.

of the contributories liable in payWm. Anderson et al., as liqui- ' ment of any calls which they may

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