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welfare, health and prosperity of Appeal from judgment entered the public.

upon verdict, and from order de The underlying foundation of nying motion for new trial made the power is the principle that all upon the minutes. property must be so used that it shall not become injurious to chase price of stock, on account of others. All reasonable restraints fraud and deceit in falsely repremay be imposed for the attain senting that it was fully paid-up ment of this end which may be stock. On February 24, 1832, deemed necessary by the law: defendant sold and assigned to making power, even though they plaintiff twenty shares of stock in amount to absolute prohibition, a company, being of the par value and the propriety of such restric. of $25 per share, for $550, and reptions is a legislative question en- resented, as plaintiff clainied, that tirely free from all judicial con- the subscription for the stock had trol.

been fully paid up; whereas, in Judgment affirmed.

fact, only sixty-two per cent. had Opinion by Dykman, J.; Bar- been paid. Plaintiff, on discovernard, P. J., concurs; Pratt, J., ing this fact, reassigned the stock dissents.

to defendant and tendered the

same back to him, and demanded FRAUD.

the money paid therefor. It ap.

peared that in November, 1881, N.Y. SUPREME COURT. GENERAL

a few months previous to the TERM. FIFTH DEPT. above transaction, plaintiff was the

owner of sixty shares of stock in Daniel Gavin, respt., v. Ferdi- the same company, upon which he nand H. Duckwitz, applt.

had paid half the amount of the Decided Jan., 1885.

subscription, and sold the same to

defendant for about the sum he In an action to recover back the purchase had paid in upon the stock, in part

price of stock, on the ground of fraud and deceit in representing it to be paid-up payment of which defendant gave stock, it appeared that a few months pre- his note for $500, the surrender viously plaintiff had sold to defendant of which to him was the principal unpaid stock in the same company, but did

consideration for the transfer by not know whether it had been afterwards paid up, and no particular shares were

him to plaintiff of the twenty mentioned as the stock which defendant shares of stock above mentioned. should transfer to plaintiff, and defendant Plaintiff testified that he knew was secretary and treasurer of the com

that the stock he sold to defend pany. Held, That it was properly left to the jury to determine whether plaintiff ant was not paid up, and that the knew, or must have known, that the stock last he knew about the stock he purchased was not paid-up stock, and, supposed it was not paid up. Ap. therefore, did not understand defendant pellant contended that this evias representing otherwise, but simply that he would subsequently pay the balance so

dence shows that plaintiff knew, as to make it paid-up stock.

or must have known, that the stock

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which he purchased from defend. | ly understood that defendant had
ant three months afterwards was paid up the stock that he
not paid-up stock, since he knew would transfer to him, and if his
that the stock in the same company testimony is correct, defendant, in
which he previously sold to de. what he stated at the time and sub-
fendant was not paid up, and that sequently, gave plaintiff to under-
he simply understood that de stand that this was paid-up stock.
fendant would subsequently pay The question presented is a close
the balance so as to make it paid one, but under all the circum-
up stock, and that being the case stances of the case we think the
no recovery can be had in this ac- question was one for the jury and
tion founded on fraudulent repre not for the court. 30 N. Y., 26.
sentations, which he believed and Judgment affirmed.
relied upon to his damage.

Opinion by Haight, J.; Barker,
The jury found in favor of plain and Bradley, JJ., concur.
C. K. Robinson, for applt.

Seaver & Marcy, for respt.

GATES. Held, That the position of ap

N. Y. SUPREME COURT. GENERAL pellant was untenable.

TERM. THIRD DEPT. If this construction is to be placed upon the evidence, the position of The People ex rel. Z. S. Westappellant would be correct, for brook, applt., v. The Board of then his subsequent failure to pay Supervisors of Montgomery Counthe amount still due upon the ty, respt. stock would be a breach of con

Decided Jan., 1885. tract only ; but upon a careful reading of the entire case we are The duty imposed upon Supervisors by $ 31 of the opinion that the evidence is

of the Code is performed when they furnish

one proper room, &c., in their county for a capable of a different construction.

court of record. It is true that plaintiff knew that And although by $ 2505 of the Code a Surrothe stock he transferred some gate must also execute the duties of his months before to defendant was

office at such other places within his county

as the public convenience requires, he cannot paid-up stock, but whether it

not (after a room has been furnished as had been subsequently paid up by aforesaid in a certain town) order the defendant he had no knowledge. Sheriff to provide him another room in No particular shares of stock were

another town and make the expense a mentioned as the stock which de

county charge. fendant should transfer to plain This was an appeal from an tiff. Defendant was secretary and order of Special Term denying treasurer of the company and had motion of relator, Surrogate and charge of its books. Some of the County Judge, for a peremptory stock of the company had been mandamus requiring respondents fully paid up.

Plaintiff evident. to audit and allow his claim for

rent of a Surrogate's office at Am

EVIDENCE, sterdam, where relator resides.

N. Y. SUPREME COURT. GENERAL He had by order established an office at Amsterdam and held Sur

TERM. FIFTH DEPT. rogate's Courts there regularly. Matthew J. McCusker, respt., v. Amsterdam and vicinity, distant John Carlson, applt. from Fonda eleven to fifteen miles,

Decided Jan., 1885. have about half the population of the county. The supervisors say Declarations made in the presence of a parts

are received, not as evidence in themselves, that they have provided a Surro

but for the purpose of enabling the jury to gate's office at the Court house in

determine whether or not a reply was called Fonda. They refused to make for, and if called for, was it the intention any provision for an office else. of the party by his silence to acquiesce in where. Under Code $ 31, the Sur

the truthfulness of the statement.

Where, therefore, a jury asked the justice rogate ordered the Sheriff to make

whether, when plaintiff said that the brick the requisite provision at Amster did not come out as recommended and dedam. This was done and the Su fendant kept silent, they should construe pervisors declined to pay this

his silence as an admission that he had

recommended the brick, and the justice charge. At Special Term they

answered “No,Held, That the reply was succeeded.

correct as far as it went; that the court 2. S. Westbrook, for applt.

could not charge as a matter of law that

defendant's silence amounted to an admisH. Dunkel, for respt.


Plaintiff should have requested the justice to Held, No error; that the duty

instruct the jury, that the circumstance imposed upon Supervisors by $ 31 might be taken into consideration as a mat. of the Code is performed when

ter of evidence in determining whether

defendant intended to acquiesce in the they furnish one proper room, &c.,

truthfulness of the statement. in their county, for a court of record, and although by $ 2505 of Appeal from judgment of Counthe Code a Surrogate must also ty Court, reversing judgment enexecute the duties of his office at tered in a justice's court in favor such other places within his county of defendant of no cause of action as the public convenience requires upon the verdict of a jury. he cannot, after a room has been Action recover damages furnished as aforesaid in a certain which plaintiff claimed to have town, order the sheriff to provide sustained upon a breach of warhim another room in another town ranty of a brick kiln. and make the expense a county

After the case had been submitcharge.

ted to the jury and they had Order aflirmed, without costs. retired to deliberate upon their

Opinion by Learned, P. J.; verdict, they returned into court Bockes, J., concurs; Landon J., and propounded the following not acting.

question in writing to the justice : "When McCusker said at the kiln that the brick does not come out


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as recommended and Carlson kept mended the brick. Plaintiff, howsilent, are we to construe this si. ever would have been entitled to lence as consenting that he had the instruction that the fact of recommended the brick ?" To defendant's silence might be taken which the court answered, “No." into consideration by the jurors Whereupon the jury again retired, together with the circumstances and after further deliberation under which the statement was came into court and rendered a made in his presence, and if they verdict of no cause of action. The were satisfied it was his intention evidence upon which this question to admit the truthfulness of the was based appeared in the re-di- statement, to find accordingly. rect examination of defendant's But plaintiff sat by and took no son, and is as follows: “Plaintiff exception to the charge as made, said the brick did not come up to and did not request the justice to what father represented them ; do make any further charge. We are, not know whether father made therefore, of opinion that he canany answer to that."

It is now

not avail himself of the omission contended that the answer of the to charge. A Justice of the Peace justice to the question asked by may instruct the jury in a question the jury was error.

of law, and if he misdirects them John G. Wicks, for applt. it is error. But he may leave the Byron A. Barlow, for respt. whole case to them without any in

Held, That the reply of the jus- structions. If, however, he charges tice was correct as far as it went. a proposition in part and then re

The rule is, that a declaration fuses to charge the law in full made in the presence of a party upon the subject when requested, becomes evidence as showing that an exception will save the rights the party on hearing the statement of the party on appeal. 16 Barb. did not deny its truth. The dec. 96; 2 Wait's Justices' Court larations are received in evidence, Practice, 612. not as evidence in themselves, but Judgment of the County Court for the purpose of enabling the reversed and that of the Justice's jury to determine whether or not Court affirmed. a reply was called for, and if called

Opinion by Haight, J.; Bradfor was it the intention of the ley, Angle and Childs, JJ., conparty by his silence to acquiesce cur. in the truthfulness of the declarations. 2 Whart. on Evid., $ 1136 ; SHERIFFS. ATTACHMENT. 3 Redf., 394; 34 N. Y., 301-305.

N.Y. SUPREME COURT. GENERAL It thus appears that the reply of

TERM. FIRST DEPT. the justice to the question of the jury was strictly correct, for the

Bolton Hall et al., applts., v. court cannot charge as a matter of The United States Reflector Co., law that Carlson's silence amount- respt. ed to an admission that he recom Decided Jan. 9, 1885.

Vol. 20%No. 18b.

The authority given by Chap. 462, Laws of ground that the judge was not

1884, to a judge adjusting the fees of a authorized under the Code, as it sheriff upon an attachment to order the

then stood, to make it.

31 Hon. payment of such fees is prospective in its character and does not give authority to 609; 18 W. Dig., 504. The sherif order the payment of fees previously ad retained the possession of the justed.

property because of the non-pay. When the plaintiff in an action in which an attachment has been issued has served no.

ment of his bill, and subsequently tice upon the sheriff releasing the attach- presented a further bill which was ment from the property seized, he is not adjusted by the judge allowing liable for the fees and expenses of the the attachments and an order made sheriff incurred while retaining the prop under the authority of Chap. 462, erty for the purpose of maintaining lien upon it for fees previously accrued.

Laws of 1884, amending subdivisA sheriff who has commenced an action to ion 2, of $ 3307 of the Code of Civ.

foreclose a lien upon property attached for Pro., which had been passed in fees upon the attachment under which he seized it, on which he has made the plain: tiffs to pay not only this additional

the interval, requiring the plaintiff in the attachment a party for the purpose of holding him liable for any deficien- bill, but also the balance remaincy, cannot avail hiinself of the remedy pro. ing unpaid on the preceding one. vided by Chap. 462, Laws of 1884, and pro- Before this order was made an accure an order directing such fees to be paid.

tion was commenced by the sheriff

to foreclose the lien claimed by Appeal from an order adjusting him upon the attached property sheriffs' fees and expenses on at- for his fees and expenses, to which tachments, and directing the same the plaintiffs were made parties, in to be paid by plaintiffs.

order to hold them liable for any The plaintiffs commenced two deficiency which might arise after actions against the defendant, and the appropriation of the property procured attachments to be issued to the payment of the bills. under which its property was Wm. B. Hornblower and Joseph seized by the sheriff. Subsequent s. Auerbach, for applts. ly the plaintiffs served notice up Edward P. Wilder, for respt. on the sheriff releasing the attach Held, That Chap. 462, Laws of ments from the property seized, 1884, was prospective in its charexcept for the purpose of satisfy- acter, and related to proceedings ing any lien upon the same for to be taken after its enactment, charges and expenses which had and that the judge had no power previously accrued. The fees and under its provisions to go back to expenses of the sheriff were ad | the bills already adjusted and justed by the judge allowing the direct their payment. That his attachments up to the time of authority over those bills was exsuch release, and the amount hausted at the time when he due ordered to be paid by the finally acted upon them, and that plaintiffs. The direction of pay

was simply to adjust the amount ment of such fees was sub- to which the sheriff was entitled, sequently reversed

upon the leaving him to his remedy for their

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