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thereto. 18 Wend., 175; 58 N. Y., return the money paid for them 272; id., 613. by plaintiff, with interest. It did not appear that plaintiff had any knowledge as to the value of the bonds, except what he derived from defendant, and relying upon his representations, purchased. Plaintiff held the bonds until July, 1875, when default being made in the interest due plaintiff, wrote to defendant, expressing his dissatisfaction, and giving him thirty days' notice, as required by the arrangement. The bonds were subsequently tendered to defend

Defendant's counsel counsel claimed claimed that the court should have directed the jury to inquire whether the driver was at the time of the injury complained of in a separate, independent business.

Held, Untenable, as such fact had no evidence for its support.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Danforth, J. All concur, except Rapallo, J., ab



N. Y. COURT OF APPEALS. Fitzpatrick, respt., v. Woodruff, applt.

Decided Oct. 7, 1884.

Complainant purchased certain bonds of defendant, who agreed that, if plaintiff at any time became dissatisfied with them, he would take them back on 30 days' notice,

and repay the price paid with interest. Two years afterward, default in the payment of interest on the bonds being made, plaintiff gave notice as agreed, but defendant refused to perform his agreement. Held, That the agreement was not within the statute of frauds; that the question whether the notice was given within a reasonable time was one of law, and that plaintiff was

entitled to recover.

This action was brought to recover the purchase price of certain bonds. It appeared that plaintiff, in December, 1872, purchased the bonds in suit of defendant, the latter having promised him, if at any time he became dissatisfied with the bonds, he would take them back on thirty days' notice, and

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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 applied to pay interest on bonds. issued by the lessor, and the remaining $35,000 to be used to pay dividends on its stock. The complaint alleged that the lessee had bought up most of the stock of the lessor for the purpose of controlling it and to avoid paying the rent, the lessor having become insolvent ; that J., as receiver of the E. R. Co., took possession of the leased road under the lease; that the property and franchises of the lessee were sold under foreclosure and bid in by the defendant, the N. Y., L. E. & W. RR. Co.; that J. was president of said road and of the E. R. Co., the lessor, and its officers were the officers and agents of the other defendants, under whose control its affairs were; that a conspiracy was entered into by the defendants to depress the price of the lessor's stock, so that they might buy it, and to accomplish this they refused to pay the $35,000 of the rent, agreed to be appropriated to pay dividends and the parties controlling the lessor refused to collect and demand. said rent. Plaintiffs asked for an accounting of the receipts of the leased road during the period it was controlled and operated by defendants respectively, and for payment of the rent in arrears.

William W. MacFarland, for applts.

Theron T. Strong, for respt. Held, That the plaintiffs had a right to maintain this action. Code Civ. Pro., $ 446.




Barr et al., respts., v. The N. Y., L. E. & W. RR. Co. et al., applts.

Decided Oct. 7, 1884.

The complaint alleged that the corporation in which plaintiffs were stockholders leased their road to the Erie R. Co for a specified rental, a certain portion of which was to be applied as dividends on the stock; that a receiver was appointed of the Erie Co. to whose rights the other defendants succeeded; that the lessee had obtained control of the lessor; and the officers of both companies are the same persons; that a conspiracy was entered into by the defendants to depress the price of the

lessor's stock, and to accomplish this they refused to pay the rent to be applied to pay dividends and those controlling the lessor refused to demand and collect said rent. Held, That an action for an ac

counting of receipts of the leased road and for payment of said rent could be maintained by plaintiffs as stockholders and that the allegations of conspiracy were material

and proper.

This action was brought to enforce certain rights of plaintiffs, as stockholders of the S., B. & J. RR. Co., under a lease of said company to the Erie R. Co., of which the defendant, J., was appointed receiver, and to whose rights and liabilities under said lease the defendant, the N. Y., L. E. & W. RR. Co. succeeded. It was provided in said lease that the lessee should pay an annual rent - of 30 per cent. of the gross earn

Where the board of directors of a corporation acts in a manner destructive of the rights of other shareholders, or where the majority of the shareholders themselves are oppressively and illegally pursuing a course which is in violation of the rights of the other shareholders, and which can only be restrained by the aid of a court of equity, an action to obtain relief may be maintained by a stockholder. 146 Otto, 450.

Also held, That the defendants were properly joined as parties defendant and that there was no misjoinder of causes of action. 17 N. Y., 592; Code Civ. Pro., § 447.

Also held, That the allegations of conspiracy in the complaint were material and proper; as mat ter of law an unlawful conspiracy existed, which affected the interests of the plaintiff.

Order of General Term, reversing order sustaining demurrer, affirmed.

Plaintiff brought an action for a limited divorce, and in 1869 obtained a decree, under which she was given the custody of the children of the marriage. No provision was made for the support of plaintiff or the care of the children. In 1879 plaintiff presented a petition to the court, which alleged an increase in defendant's means, and also concealment by him as to his means at the time the decree was granted, and asked for an allowance for the support of herself and for the care and education of the children. A ref. eree was appointed to take proof and report, and plaintiff moved for a confirmation of his report, giving her an allowance, as prayed for in the petition. The motion was denied by the Special Term, on the ground that the court had no power now to make plaintiff an allowance by way of alimony. The order of the Special Term was affirmed by the General Term, so far as it refused plaintiff an allowance for her own support, and reversed it so far as an allowance for the care and education of the children was denied, and a reference was directed "to ascertain and report a suitable and proper allowance for the past and future cus



Erkenbrach, applt., v. Erken- tody, care and education of said brach, respt.

children since the decree of separation."

Opinion by Miller, J. All conAll concur, except Rapallo, J., not voting.

Decided Oct. 7, 1884.

An order directing the payment of alimony by the husband to the wife cannot be made after the entry of a decree of separation making no provision therefor; but prevision for the support of children may be

made, under 2 R. S., 147 § 59, affirming

S. C., 18 W. Dig., 444.

Joseph A. Welch, for applt.
J. J. Marrin, for respt.

Held, No error; the authority to make the order for alimony asked for must be found in the Revised Statutes, all preceding statutes on the subject having been repealed

by chapter 21 of the Laws 1828
(Subd. 549, § 1 Laws of 1829). The
Courts in this State have no com-
mon law jurisdiction over the sub.
ject of divorces, and their author-
ity is confined altogether to the
exercise of such express and inci-
dental powers as are conferred by
the statute. 5 Stat. at Large, 399;
1 Hopk., 557; 47 N. Y., 138; 59 id.,│|
218; 75 id., 221. No distinction
between an action for an absolute
divorce and one for a limited
divorce exists as to the allowance
of alimony after final decree.


The relator was indicted Nov. 24, 1882, for keeping a bawdy house from June 12, 1882, to Nov. 24, 1882. He was convicted Oct. 11, 1883, and sentenced to be imprisoned in the Onondago County Penitentiary for the term of one year and to pay a fine of $250, &c. In pursuance of this sentence he was taken to said penitentiary and there employed at work. A writ of habeas corpus was granted to him, which was dismissed. J. L. Baker, for applt. Clarence L. Smith, for respt. Held, No error; that the case is governed by the common law. Penal Code, § 719. The common law remedy by indictment against the relator was not abolished or superseded by or inconsistent with 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 with disorderly persons, among whom were persons keeping a bawdy house, were substantially re-enacted in the Code of Criminal Procedure (899). The main purpose of those provisions is to arrest the disorderly practices named, by compelling a disorderly person to give security for his good behavior. If he gives the security required he cannot be punished. If he fails to give the security he may be committed to the county jail for not exceeding six months, from which he may be discharged at any time upon giving security. Code Cr. Proc., §§ 902, 903, 907, 910. The

Under section 59 of 2 R. S, 147, an order may be made, in an action by a wife for a divorce or separation "during the pendency of the cause or at its final hearing, or afterwards, as occasion may require * for the custody, care and education of the children of the marriage."

* *

at the penitentiary forms no part of the sentence.



The People ex. rel. Van Houten, applt., v. Sadler, Supt., respt.

Decided Oct. 21, 1884.

The common law remedy by indictment against keepers of bawdy houses was not abolished or superseded by or inconsistent

with the provisions of the Code Crim. Pro.

as to disorderly persons. Both proceedings may be taken against the keeper of such a house. The provision of the statute as to how the person shall be kept and employed

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keeping of a bawdy house was also a misdemeanor at common law and is now made so by the Penal Code (322), which took effect Dec. 1, 1882. The relator, while he kept the bawdy house, could have been arrested and dealt with as a disorderly person, or he could have been indicted and punished for keeping such bawdy house. The two proceedings had different ends in view and could both be taken against one who kept such a house. Such person could be arrested as disorderly and compelled to give the security required, and afterwards indicted and punished for having kept a bawdy house.

The statute under which the relator was sentenced provides that the judge may "sentence such person to imprisonment in such penitentiary, there to be received, kept and employed in the manner prescribed by law and the rules and discipline of such penitentiary." It was objected that the words italicised are not contained in the sentence.

Held, That those words are no part of the sentence, but are simply directory to the keeper of the penitentiary, prescribing what shall be done with the prisoner and how he shall be kept.

Order of General Term, affirming order dismissing writ, affirmed.

Opinion by Earl, J. All concur, except Rapallo, J., absent.

Wm. Anderson et al., as liqui-

dators, applts., v. John Haddon, respt.

Decided Oct. 8th, 1884.

A judgment of a court of a foreign country is not conclusive upon and will not be enforced in the courts of this State unless upon a proper examination it is established that the cause of action upon which it was recovered is one recognized by the common law and the proceeding in which it was obtained was one in which a trial was had in accordance with the rules of the common law; and if such is not the case, even the appearance of the party in the foreign court will not be regarded as conclusive of his rights or as affecting them at all injuriously.

Appeal from interlocutory judgment sustaining demurrer to 2d, 3d, 4th and 5th defences contained in the answer.

This action was brought by the plaintiffs as liquidators of the City of Glasgow Bank, a foreign corporation created by the laws of Great Britain, against the defendant as one of the stockholders of the bank to enforce his individual liability upon the stock he owned as determined by a decree pronounced against him by the Court of Sessions in Scotland, or the Lord Ordinary. It appeared by the complaint that the decree upon which the action was brought was obtained under § 121 of a statute of the Kingdom of Great Britain, known as the "Companies Act of 1862," authorizing the pronouncing of such a decree by the Court of Sessions in Scotland, or the Lord Ordinary, after the dissolution of a corporation, upon the production by the liquidators of a list, certified by them, of the names of the contributories liable in payment of any calls which they may

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