Volume 150 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion.

<p>1. Maintenance of Novel Action. The novelty of an action for which no direct precedent can be cited does not of itself warrant the reversal of a judgment, and it will be sustained when it is based upon legal principles clearly applicable to the new state of facts. The novelty of an action for</p> <p>2. Recovery of Damages for Marriage Induced by Fraud of Third Party. One who, by falsehood and fraud, induces a man to marry| a woman is guilty of a wrong that may be remedied by an action, the anjount of damages to be recovered depending upon the circumstances of the particular case.</p> <p>3. RECOVERY OF DAMAGES FOR MARRIAGE INDUCED BY FRAUD OF Third 1 Party. ,One who, in the belief that a woman is virtuous, is induced|to marry her by the false representations of a third party, by whom she is at the time pregnant, may maintain an action for damages against the wrongdoer upon the broad ground of the loss of consortium, to which the husband is entitled and of which, by the fraud complained of, he has been deprived.</p>

This was a motion to dismiss an appeal taken by David A. Doyle from an order of the Appellate Division of the Supreme Court in the first judicial department, made July 31, 1896, which affirmed an order of Special Term refusing his motion for leave to intervene as a party in the proceedings. The facts, so far as material, are stated in the opinion. The court has jurisdiction to hear this appeal. (Code Civ.

<p>1. Court of Appeals — Jurisdiction—Order Granting New Trial on Exceptions — Constitution, Art. 6, § 9 — Code Civ. Proo. § 1022. An order granting a new trial on 'exceptions, within the meaning of the clause of the Constitution (Art. 6, § 9) which authorizes appeals, as of right, to the Court of Appeals, from orders of the Appellate Division of the Supreme Court, “ granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them,” may be founded on an exception filed, as provided by the Code of Civil Procedure (§ 1022), to a decision which does not state separately the facts found.</p> <p>2. Appeals from Orders Granting New Trial. An appeal from an order of reversal of the Appellate Division, made by a divided vote, granting a new trial, on exception filed, in an action tried by the court or a referee, and stating that it is upon questions of fact, or questions of fact and law, raises a question of law as to whether there was any evidence to support the view of the Appellate Division, and if there is no material question of fact appearing in the record, the Court of Appeals has power to review; but if it appears that there was any material and controverted question of fact, and, hence, that the Appellate Division had power to reverse upon the facts, its decision is final, and the Court of Appeals must, by force of the restriction of its jurisdiction to the review of questions of law, affirm the order or dismiss the appeal therefrom.</p> <p>3. Elevated Railroad Action—Appeal from Order Granting New Trial—Question of Excess of Injury over Benefits. When, in one of the usual actions against an elevated railroad company for an injunction and damages, the Special Term decides that the railroad has inflicted no injury upon the property of the plaintiff when the benefits are taken into account, and dismisses the complaint by a decision which does not state the facts separately, and the plaintiff files an exception to the decision, an appeal to the Court of Appeals from an order of the Appellate Division, not made by unanimous vote, reversing the judgment and granting a new trial “ upon questions of fact and law," raises the question whether there was any substantial evidence of excess of injury; and if an examination of the record discloses any evidence which shows that a question of fact was presented for determination, the decision of the Appellate Division is final, and the appeal therefrom will be dismissed.</p>

<p>1. Corporations — Control of One Corporation by Another, Holding Majority of Stock — Assumption of Trust Relation to> Minority Stockholders. Where a majority of the stock of a corporation is owned by another corporation, and the latter assumes the control of the business and affairs of the first corporation, through its officers, and directors, it assumes the same trust relation towards the minority stockholders of the controlled corporation that a corporation itself usually bears to its stockholders; and when it appears that it has made use of such trust relation to secure or promote some selfish interest, it is enough to set a court of equity in motion and to require the majority stockholding corporation to explain such a transaction.</p> <p>3. Enforcement by Controlling Corporation of Defaulted Obligation op a Corporation op which it is the Majority Stockholder—Bights op Minority Stockholders. A corporation cannot acquire the majority of the stock of another corporation, obtain control of its affairs, divert the income of its business, refuse business which would have enabled it to pay its interest charges and avoid default, and then institute an action in equity to enforce its defaulted obligations, against such corporation, with the avowed purpose of obtaining control of its property at less than its value, to the injury of its minority stockholders.</p> <p>8. Railroad Mortgage—Foreclosure at Instance op Railroad-Company Holding Majority op Stock op Mortgagor Company— Rights of Minority Stockholders — Material Evidence. On the trial of an action brought by the trustee of a railroad mortgage, at the instance of a railroad company which held a majority of the stock and defaulted bonds of the mortgagor company, and controlled its affairs, to foreclose the mortgage, and obtain a sale of the mortgaged property, for the purpose of enabling the majority stockholding company to obtain control thereof at less than its value, it is error to reject, as immaterial, evidence offered by intervening minority stockholders of the mortgagor company to show that, after the majority stockholding company became the owner of a majority of the stock and bonds of the mortgagor company, and while its officers were in control of the latter corporation and its affairs, it declined to accept traffic from other roads which would have produced a fund with which to pay interest due on the mortgage bonds; that the income of the road, which should have been employed to pay such interest, was used for other and improper purposes, and that such action upon, the part of the majority stockholder occasioned the inability of the mortgagor company to pay the interest and cure the default.</p> <p>4. Purchase, by One Corporation, of Stock of Another—Equity. The right of a corporation to purchase stock and bonds of another corporation, even if given by statute, confers upon the purchaser no authority to employ the stock and bonds for purposes condemned by the principles of equity.</p> <p>5. Railroad Mortgage — Maintenance op Action by Trustee. Quaere, whether an action, commenced by the trustee, upon the request of persons purporting to own the requisite amount of bonds, to foreclose a railroad mortgage which provides that in case of default the trustee may, of his own motion, bring an action of foreclosure, and that he must do so if requested by the owners of a certain amount of the mortgage bonds, can be maintained when it is shown that the requesters did not in • fact own the bonds on which their request was based.</p>

This action was brought to obtain a judgment, which should perpetually'restrain the common council of the city of Albany from, electing police commissioners in pursuance of the provisions of chapter 427 of the Laws of 1896. The ground of the action is the unconstitutionality of the act; which was passed to amend chapter 77 of the Laws of 1870 and other acts relating to the police department of that city.

The facts, so far as material, are stated in the opinion. The Appellate Division should not have dismissed the appeal either upon the ground specified in its order, or upon the grounds or reasons stated in the prevailing opinion of the Appellate Division. (Laws of 1896, chap. 909, §§ 86, 87, 89; In re Cuddeback, 3 App. Div. 103; Code Civ. Proc. § 719.) The order of the justice of the Supreme Court, entered herein October 19, 1896, is not appealable.

Appeal, upon questions certified for review, from judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 18, 1896, which affirmed an interlocutory judgment in favor of defendant entered upon a decision of the court on trial at Special Term, sustaining a demurrer to the complaint.

<p>Preference on Calendar — Code Civ. Prou § 791, Sued. o. The right to a preference upon the calendar, given by subdivision 5 of section 791 of the Code of Civil Procedure, when a person, in one of the capacities mentioned therein, is the sole plaintiff or sole defendant, does not extend to a case where the same person is joined as a party in his individual capacity as well as in the prescribed capacity.</p>