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wish to enforce, and of the amount comity, and that principle does due by each contributory respect. not require the adoption of adjudiively.

cations of a court in a foreign The 2d, 3d, 4th and 5th defences country which proceeds in a mancontained in the answer set up ner unknown to our laws; and substantially that the court had when a foreign judgment is preno jurisdiction of the action; that sented as a cause of action, inquiry the plaintiffs had no capacity to must be made to ascertain whether sue; that no notice had been given the cause of action was one recogto defendant of the settlement of nized by the common law, and the list of contributories or of the whether the proceeding was one in application for the decree; that he which a trial was had according to was not served with process, and the rules of the common law; and did not appear in the proceedings. when upon a proper examination

These defences were demurred it appears that such was not the to, and the Court at Special Term case, the judgment should not be sustained the demurrer, chiefly enforced either as a matter of upon the ground that the defend courtesy or otherwise, and even ant having voluntarily become a the appearance of the party in the member of the corporation, had foreign court should not be resubjected himself to the law under garded as conclusive of his right, which it was created and by which or indeed as affecting them at all it was governed, and had thereby injuriously. assented to the proceedings, taken That the application of the above under its provisions, for determin- doctrine to this case would relieve ing and enforcing his liability. the defendant from liability under

Edward Patterson, for applt. the decree sued upon. De BriShearman & Sterling, for respt. mont v. Pennyman, 10 Blatch.

Held, That inasmuch as the Civ. Court Rep. mode provided by the act of Great

Judgment reversed and demurBritain of ascertaining the liability rer overruled. of the defendant was summary, Opinion by Brady, J.; Davis, in derogation of the common law, P. J., and Daniels, J., concurred. and in the nature of bankruptcy proceedings, it had no extra terri

AGENT. NEGLIGENCE. torial force, either by virtue of its own inherent elements or any pro. N. Y. SUPREME COURT. GENERAL vision contained in it creating a

TERM. FIRST DEPT. personal responsibility which could be enforced in the manner adopt

Dennis Barber, respt., v. Aben

droth Brothers, applts. ed in this action. 59 How, 512; 46 N. Y., 119.

Decided Oct. 8, 1884. That the principle upon which

Plaintiff's boat, with a load of sand consigned foreign judgments receive any

to defendants, arrived at the latter's wharf recognition in our courts is one of near the middle of the night. A watchman

in the employ of defendants was upon the and the water at that point proved wharf, to whom the plaintiff applied for

to be so shallow that the boat directions as to where the sand was wanted, and was answered by the watchman that he

rested upon the bottom, which was could not tell, but he indicated a point so uneven as to cause it to settle upon the wharf where sand had previously amidships, inflicting the injury, to been received by defendants. Plaintiff

recover damages for which the moored his boat at that point, and upon the tide going out the boat rested upon the plaintiff brought this action. Upon ground, which at that place proved to be

the trial the defendants proved uneven, and for that reason inflicted the in

that the duties of the watchman jury to the plaintiff's boat which was the

were limited to the protection of subject of the action. Held, That the watchman had the apparent authority to

the premises against fire and burindicate where a vessel might be safely glary, and insisted that they were moored, and that the defendants could not guilty of no negligence in the matescape liability for his act by asserting that

ter. his real authority extended only to the protection of the premises against fire, &c. D. B. Ogden, for applts.

When a wharf has been maintained in its position for such a length of time and un

Hyland & Zabriskie, for respts. der such circumstances as to warrant the

Held, That the fact that the imputation of negligence to its owners in

watchman was in the service of defailing to remove an unevenness in the bot. tom alongside of such wharf, which causes

fendants and was upon the preman injury to a vessel lawfully coming there ises in their apparent charge and to, the owners of the wharf are liable for possession, was an indication that such injury.

it was his duty as well as his auAppeal from a judgment recov- thority to look after their affairs, ered on the verdict of a jury and and that he so far represented from an order denying a motion them as to be authorized to indifor a new trial.

cate where a vessel might properly The plaintiff, who was the owner be moored which arrived at the and captain of a canal boat, re wharf in the defendants' business oeived a load of sand consigned to during the night time, when no defendants, and under such con other person was to be found who signment proceeded to defendants' could be consulted at the time, for dock, in the vicinity of which he when one person is in the employarrived about midnight. He found ment of another he is to be regarda watchman upon the dock, and he ed by others acting upon his apapplied to him for directions as to parent authority, as possessing all where the sand was wanted, and the power on behalf of his emwas answered by the watchman ployers which is necessary to prothat he could not tell, but he indi- mote the object and end of his cated a point on the wharf where employment. 60 Barb., 181, 196 ; sand had previously been received, 50 id., 407; 46 N. Y., 325, 329. and at the point so indicated the That the plaintiff acted upon the plaintiff moored his boat, being as- apparent authority of the watchsisted by the watchman in so doing. man and the defendants conld not Subsequently the tide went out relieve themselves from liability

99

by asserting that the apparent was

A criminal charge may be resubmitted to the not the real anthority.

grand jury der $ 270 of the Code of

Criminal Procedure as often as the Court That the plaintiff, under the evi

may so direct. dence, could very well have been found to have located his boat

Appeal from an order resubmitwhere, in the exercise of reasonable ting a criminal charge to the care and caution, it was prudent grand jury, to do that; and, since the wharf

A complaint for an assault in had been maintained in its position the third degree was preferred at for such a length of time and the Westchester Oyer before the under such circumstances as war

grand jury, and upon the close of ranted the jury in finding that the the evidence no bill was found. defendants had negligently failed This result was reached on the 6th to render the locality safe by re

of February, 1884. On the 7th of moving the uneven ness of the February, 1884, the case was rebottom, for the use and occupation considered and a bill was found. of a vessel employed as the plain. Upon the motion to dismiss the tiff's was to transact its business indictment it was admitted by the at the dock, they were liable for District Attorney and the defendthe injury caused thereby.

ant's counsel “that this matter Mass., 116, 7 Black, 290 ; 59 N. Y.,

was sent to the grand jury for 28; 4 Hun, 99.

their action pursuant to the pro

vision of the Code of Criminal Judgment affirmed.

Opinion by Daniels, J.; Brady, Procedure of this State.” J.. concurred.

Nelson N. Baker, for respt. Davis, P. J., dissented, holding

Smith Lent, for applt. the defendants had not been shown

Held, No error. By $ 270 of the to have been guilty of negligence, Code of Criminal Procedure it is and even if such negligence had provided that a charge may be been shown, that the plaintiff was

resubmitted to the grand jury as guilty of contributory negligence often as the court may so direct. in mooring his boat and leaving The admission is broad enough to her without proper care or inquiry cover a proper order for resubmiswhere she was exposed to injury.

sion.

Order affirmed.

Opinion ky Barnard, P. J.;

Pratt and Dykman, JJ., concur. CRIMINAL LAW. INDICTMENT.

CORPORATIONS. MORTGAGE. N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

THE N. Y. COURT OF APPEALS. The People, respt., John The Rochester Savings Banki Lynch, applt.

respt., v. Averill et al., applts.

V.

Decided Oct. 7, 1884.

Decided Sept., 1884.

Vol. 20.-No. 1a.

A mortgage given by a corporation without | loaned for the payment of its debts. the assent of its stockholders is made valid

Prior to the execution of that by a subsequent assent where no intervening rights exist.

mortgage the requisite consent in It is not indispensable to the validity of the writing of the owners of two-thirds

mortgage that the assent should be filed in of the stock was obtained. At the the county where the mortgaged property time of his loan to plaintiff, B. is situated. A subsequent mortgagee or purchaser with notice cannot set up ihe failure knew of the existence of plaintiffs' to file the assent as a defense to the prior mortgage. The B. mortgage was mortgage.

subsequently foreclosed, and the A mortgage given to secure a loan with which to pay debts, is one executed to secure the property bid in by the defendants,

J. and W.A., who were stockholdpayınent of debts of the corporation within the meaning of Ch. 517, Laws of 1864, al

ers of the 0. I. Co. and knew of though not executed to the creditors of the plaintiff's mortgage. They made corporation.

no inquiry of the officers of the 0. This action was brought to fore- I Co. or of plaintiff concerning the close a mortgage executed by the mortgage in suit. 0. I. Co., a corporation organized Louis Hasbrouck, for applts. under the general manufacturing

Edward Harris, for respt. act upon its real estate, to secure Held, That plaintiff's mortgage a bond executed by it and others was made valid by the assent of of the defendants. The mortgage the owners of two-thirds of the was dated January 2, 1874, and re stock of the corporation executed corded in the county where the in November, 1874, there being no real estate was situated, Jannary intervening rights. 2 Sandf., 137. 21, 1874, and was given to secure a Such an assent is an indespensable loan made by plaintiff to said 0. condition to the creation of a valid I. Co. to pay certain debts, and mortgage under the act of 1864 the money was used for that pur (Chap.517, Laws of 1864, as amendpose

No consent in writing signed by Chap. 181, Laws of 1871). ed by owners of two-thirds of the The object of the Legislature, in stock, as required by the statute, requiring such assent, was the pro was obtained before the execution tection of stockholders against imof the mortgage. Such a consent provident, collusive or unwise acts dated January 3, 1874, was pro. of the trustees, the governing body cured and signed in November, of the corporation, in incumbering 1874, at which time the mortgage the corporate property. 69 N. Y., in suit was re-acknowledged and 333. again recorded.

This consent was Also held, That the filing of the filed by plaintiffs' attorney in Mon- assent in the county where the roe county instead of the county mortgaged property is situated is where the mortgaged property was formal and subsidiary, and is not situated, and no consent has been indispensable to the validity of the filed in said county. In 1877 the mortgage. A subsequent mort0. I. Co. executed another mort- / gagee or purchaser, with notice, gage to one B., to secure money i could not set up a failure to file the

assent as a defense to the prior four alleged several and distinct mortgage, if the filing of the assent causes of action against as many was essential it may be done as of separate defendants be stricken the time the assent was given. 1 from the complaint, and from the Bro. C. C., 269; 1 Ldg. Ca. in Eq., | order granting this motion the 440, and notes.

plaintiff appealed. The Act of 1875 (Chap. 88), au Herbert Valentine, for applt. thorizing the filing of an assent,

W. W. Niles, for respt. when by accident or mistake such filing has been omitted, does not Held, That the motion must evince a legislative construction of have been made upon the ground the Act of 1864 adverse to the of misjoinder of actions, and asabove holdings.

suming that there was such a misAlso held, That although plain- joinder, this was not an approtiff's mortgage was not executed priate remedy. That the code to the creditors of the corporation provides the remedy by demurrer directly, it was executed to secure

to be taken in such case by the the payment of debts of the cor several defendants for misjoinder poration within the meaning of the of several causes. That it does Act of 1864. 65 N. Y., 44.

not permit the defendants to join in Judgment of General Term, af- a motion to strike out the several firming judgment for plaintiff, af. causes because improperly united. firmed.

That such a motion would not afOpinion by Andrews, J. All ford appropriate relief unless it

resulted in striking out the entire complaint; and that it would be

absurd to allow each of the dePRACTICE. PLEADING.

fendants to move that the cause of N.Y. SUPREME COURT. GENERAL action against him be stricken out; TERM. FIRST DEPT.

or all to join, as in this case, in an

alternative motion that some one Wm. W. Averill, applt., v.

or other of the alleged several Amzi L. Barber et al., respts.

causes of action be stricken out, Decided Oct. 8, 1884.

leaving the other causes in full

vigoragainst the several other misA motion to strike out of a complaint cer

tain causes of action, on account of their joined defendants. That such a misjoinder with others, is not the proper practice is neither to be encourmethod of taking advantage of that de-aged nor allowed. fect. The objection should be taken by Order reversed and motion dedemurrer.

nied but without prejudice to any Appeal from an order striking other remedy. certain causes of action from the Opinon by Davis, P.J.; Daniels, , complaint.

J., concurred. A joint motion was made by the defendants in this case, asking that

concur.

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