Volume 168 — New York Reports

The facts, so far as material, are stated in the opinion. The tax in question is not a tax upon the gross earnings of the relator, but an excise tax, for the privilege of exercising its franchise within the state of New York; and the fact that it is measured by the amount of its gross earnings creates no restriction upon or interference with interstate commerce. (Maine v. G. T. Ry. Co., 142 U. S. 217; H. Ins.

Appeal, by permission, from a judgment entered June 27, 1900, upon an order of the Appellate Division in the fourth judicial department, affirming an interlocutory judgment overruling a demurrer to the plaintiff’s complaint.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 26, 1900, which reversed an order of Special Term denying a motion to vacate and set aside an Order directing Charles W. Morse and others to appear and be examined under the provisions of chapter 690 of the Laws of 1899, and vacated such order. Also motion to dismiss the appeal.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 15, 1900, affirming a judgment -in favor of defendant entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The Court of Appeals has the power to examine the record to see whether the evidence supports the conclusion of the jury. (Ostrom v. Greene, 161 N. Y. 353; Jerome v. Q. C. C. Co., 163 N. Y. 351.) The declarations of Rice as to his authority were incompetent, and their admission in evidence constitutes reversible error. (Wharton on Agency, §§ 44, 163, 459; People's Bank v. St. A. R. C. Church, 109 N. Y. 525; Fairlie v. Hastings, 10 Ves. Jr. 123; Garth v. Howard, 8 Bing. 453; Carrére v. Dun, 18 Misc. Rep. 18; Howard v. Norton, 65 Barb. 161; Duffus v. Schwinger, 79 Hun, 541; Dobson v. Kuhnla, 20 N. Y. Supp. 771; Marvin v. Wilber, 52 N. Y. 270; Snook v. Lord, 56 N. Y. 605.) The objection was properly taken on the trial. (Code Civ. Pro. § 911.) Rice was the agent of the defendant Megraw, not of the plaintiffs, in all the negotiations resulting in the employment of Megraw. (F. B. N. Co. v. Mackey, 158 N. Y. 140; Walsh v. H. F. Ins. Co., 73 N. Y. 5.) If Rice had any authority from the plaintiff it was that of a special agent, created and limited by the precise terms of his instructions. (Stringham v. St. N. Ins. Co., 3 Keyes, 280; F. B. N. Co v. Mackey, 158 N. Y. 140 ; Jacobs v. Marshall, 6 Duer, 689; Gibson v. Colt, 7 Johns. 389; Mills v. Lewis, 55 Barb. 179; N. R. Bank v. Aymar, 3 Hill, 262; Story on Agency, §§ 24, 125; Nixon v. Palmer, 8 N. Y. 398; Martin v. Farnsworth, 49 N. Y. 555 ; Joseph v. Struller, 25 Misc. Rep. 173.) Plaintiffs never ratified the alleged contract. (Smith v. Tracy, 36 N. Y. 79; Baldwin v. Burrows, 47 N. Y. 199; Trustees of Easthampton v. Bowman, 136 N. Y. 521; Nixon v. Palmer, 8 N. Y. 398; Spadone v. Manvel, 2 Daly, 263; Ritch v. Smith, 82 N. Y. 627; Munroe v. Judson, 82 Hun, 215; 151 N. Y. 671; Smith v. Bradhurst, 18 Misc. Rep. 546; 31 App. Div. 98; King v. Mackellar, 109 N. Y. 215.) Eice was clothed with no authority, actual or apparent, on June fourteenth, to make the alleged agreement. (Rathbun v. Snow, 123 N. Y. 343; Bickford v. Menier, 107 N. Y. 490; Tucker v. Woolsey, 64 Barb. 142; Leinkauf v. L. A. & Co., 12 App. Div. 302; Edwards v. Dooley, 120 N. Y. 540; Walsh v. H. F. Ins. Co., 73 N. Y. 5; Wait v. Borne, 123 N. Y. 592.) The apparent and visible terms of a contract must control. (Carrére v. Dun, 18 Misc. Rep. 18; Wait v. Borne, 123 N. Y. 592; Pearce v. Rogers, 3 Esp. 214.) Megraw’s testimony as to the declarations made by Eice was incompetent, and its admission in evidence constitutes reversible error. (Carrére v. Dun, 18 Misc. Rep. 18.) It was error for the court to charge that the question of authority was for the jury. (F. B. N. Co. v. Mackey, 158 N. Y. 140; Leinkauf v. L. A. & Co., 12 App. Div. 302.) The counterclaim should be dismissed. (Leinkauf v. L. A. & Co., 12 App. Div. 302; F. B. N. Co. v. Mackey, 158 N. Y. 140.)</p> <p>The examination of this court must be confined to the inquiry as to whether there is any evidence tending to sustain the verdict. (Ostrom v. Greene, 161 N. Y. 357; Jerome v. Q. C. C. Co., 163 N. Y. 357; E. V. B. Co. v. Prosser, 157 N. Y. 295.) There is evidence tending to show direct authority to Eice to employ defendant. (Sweet v. Tuttle, 14 N. Y. 472; Knapp v. Smith, 27 N. Y. 281; Kelly v. Doody, 116 N. Y. 583; Van Ingen v. M. & E. Pub. Co., 14 Misc. Rep. 332.) There was no admission of mere declarations of the agent, and the agency was fully established by testimony. (Walsh v. Hartford F. Ins. Co., 73 N. Y. 10; Ruggles v. A. C. Ins. Co., 114 N. Y. 415; Rathbun v. Snow, 123 N. Y. 343; Wait v. Borne, 123 N. Y. 592; Bickford v. Menier, 107 N. Y. 490.) The testimony of Eice was taken by commission. If the appellants were not satisfied with the questions they should have objected to them as to form. Not having objected to them when they were settled they should have moved to suppress the commission if the questions were not answered in legal form. (Fassin v. Hubbard, 55 N. Y. 471; Baker v. Spencer, 47 N. Y. 565; Hazlewood v. Heminway, 3 T. & C. 787; Hill v. Canfield, 63 Penn. St. 77; Crowell v. W. R. Bank, 3 Ohio St. 406; Akers v. Denond, 103 Mass. 322.) The authority of Pice being established, anything said or done by Rice can be established by declarations made by him to defendant. (Walsh v. Hartford F. Ins. Co., 73 N. Y. 10; Ruggles v. Am. Cent. Ins. Co., 114 N. Y. 415; Rathbun v. Snow, 123 N. Y. 343; Wait v. Borne, 123 N. Y. 592 ; Bickford v. Meiner, 107 N. Y. 490.) The defendant was led to believe and had a right to believe that the agreement entered into between him and Pice representing the plaintiffs was authorized. (Collier v. Miller, 137 N. Y. 332; Viele v. Judson, 82 N. Y. 40; Hollis v. Hubbard, 8 N. Y. L. R. 534.) Where principals intrust others with power they must be responsible for its exercise. If Rice exceeded his authority, the defendant could not know it, and he ought not to suffer. (Fairchild v. McMahon, 139 N. Y. 295; Ruggles v. A. C. Ins. Co., 114 N. Y. 421; Angell v. H. F. Ins. Co., 59 N. Y. 171; Wait v. Borne, 123 N. Y. 592; Bickford v. Meiner, 107 N. Y. 494; Rathbun v. Snow, 123 N. Y. 349.)</p>

The facts, so far as material, are stated in the opinion. The Harlem river is a navigable highway under the jurisdiction of the United States, by cession from the city and state of New York. Held: appurtenant to his ownership of the bank, an easement of access and of way'over the water, of the river, in common with all the public, for navigation and commerce.

First Judicial Department, entered June 3, 1901, which affirmed a judgment of the Court of Special Sessions of the City of Dew York convicting the defendant of a misdemeanor. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. Mandamus is not the proper remedy where an adequate remedy by action exists, and where the issuance thereof will not benefit the public. (People ex rel. v. Common Council, 78 N. Y. 56; People v. N. Y., L. E. & W. R. R. Co., 2 Civ. Pro.

The facts, so far as material, are stated in the opinion. The léase expressly reserved the right to-compensation. (Matter of Trustees N. Y. & B. B., 137 N. Y. 97.) The clause of the lease providing that in case the wharf “ shall be destroyed or substantially changed by the direction and authority of the department of docks,” etc., does not contemplate the taking of the property by the city of Mew York.

tax certificate. . The facts, so,-far as material, are stated in the opinion. A conviction for gelling, without having obtained a liquor tax certificate does not work á forfeiture of a certificate afterward acquired, or of the right to rebate. (Matter of Lyman, 27 Misc. Rep. 327; 44 App. Div. 507.) The right to the rebate is a property right, of which the certificate holder can only be deprived by due process of law. (Met.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants Sess had nothing to do with the things which the evidence tended to show caused the collapse of the buildings.

Richmond, deceased, for the payment of his debts. The facts, so far as material, are stated in the opinion. The proceeding to dispose of a decedent’s real property for the payment of debts is purely statutory, authorized and controlled by sections 2749-2801 of the Code of Civil Procedure, and that statutory proceeding must be strictly pursued.

<p>1. Judgment—Foreign Court — Service of Process on Nonresident. No jurisdiction of a New York stockholder in an English corporation is acquired by service upon him in New York of process in an action in an. English court to enforce calls for the amount unpaid on his stock, which will support a personal judgment against him by that court so as to have any force and effect in New York, either to bind him personally or his property therein.</p> <p>2. Trial — Questions of Law. Questions as to what the law of a foreign country is, where they depend upon the construction and effect of statutes or judicial opinions, are questions of law and not of fact.</p> <p>3. Pleading—Illegality of Call—Lex Fori. The illegality of a call for the amount unpaid on stock of an English corporation may he set up as a defense in an action brought in New York to recover the amount thereof.,</p> <p>4 Corporations — Reorganization under English Companies Act—Transfer of Uncalled Capital. Amounts unpaid on stock at the time of the liquidation of a corporation do not constitute a part of its “ business and property ” which may be transferred to a new company under section Í61 of the English Companies Act of 1862.'</p> <p>5. Voluntary Winding up under English Companies Act — Continuance under Order of Court. That a voluntary winding up of a company under the English Companies Act was subject to the supervision of the court does not take the proceeding out of the operation of section 161 and make it a winding up by the court, where the petition sought for a continuance of a voluntary winding up subject to the supervision of the court as opposed to a winding up by the court upon the petition of creditors, and the order was that the voluntary winding up be continued subject to such supervision.</p> <p>6. Validity of Reorganization Scheme. ' A scheme for the reorganization under the English Companies Act of a corporation being voluntarily wound up is invalid because of inequality of treatment of shareholders, where those who take stock in the new company are, on payment of a small amount on each share of its stock, to be relieved from the payment of the amount unpaid on their old shares, whereas the full amount unpaid on old shares of those refusing to come in is to be enforced, not for the benefit of the old company and its shareholders, but for the benefit of the new company composed of old shareholders taking stock in it.</p> <p>7. Same. Such scheme is unauthorized where it contemplates excessive calls upon dissenting stockholders producing an amount much greater than is necessary to pay all debts and liabilities of the old company and providing that the fund thus raised, instead of being applied to such purpose and the remainder divided among the shareholders, shall be paid over to the new company for its benefit and the benefit of its stockholders.</p> <p>8. Evidence — Expert Testimony to Overcome Foreign Statutes and Decisions. Testimony of experts as to the approval by the English courts of ■ schemes for the reorganization under the English Companies Act of companies being voluntarily wound up, contemplating the transfer as part of its business of the right to call unpaid amounts on stock in exchange for shares in a new company cannot control the statutes and decisions of the English courts to the contrary.</p> <p>9. Estoppel of Stockholder. A stockholder of the corporation sought to be reorganized is not estopped to set up in an action to enforce calls for unpaid stock, the illegality of the scheme adopted and sanctioned by the court because of failure to oppose it before it was sanctioned, where he knew absolutely nothing of it or that it was before the court until long after.</p> <p>10. Extra-territorial Effect of English Joint Stock Companies Arrangement Act—Foreign Stockholder. A scheme sanctioned by the court for the reorganization of a corporation under the English Joint Stock Companies Arrangement Act of 1870 is binding only on the person or property of stockholders in England, and will not be enforced by the New York courts against a New York stockholder personally.</p> <p>11. Courts — Jurisdiction of Foreign Stockholder — Imposition of Liability. Personal liability cannot, in proceedings for the voluntary winding up of a corporation under the English Companies Act, be imposed by the English courts upon a New York stockholder to pay calls upon his shares solely for the benefit of another company to which the interests of the old company have been transferred with, the sanction of the court under that act, in the absence of personal service upon him r his appearance in the winding-up proceedings.</p> <p>12. Corporations.— Implied Contract of Stockholder—Transfer of Uncalled Capital. There is-no implied contract on the part of a purchaser of stock in a corporation to become liable to pay calls upon his shares solely for the benefit of a new company to which the interests of the old company have been transferred under a scheme for reorganization under the English Companies Act.</p> <p>13. Enforcement of Calls — Comity. Calls against a New York stockholder for unpaid amounts on"stock of an English corporation will not be enforced by the New York courts on the ground of comity, where not necessary for the payment of debts, and the recovery thereof is solely for the benefit of a new corporation under an unequal and oppressive scheme of reorganization contemplating the transfer to the new company of the amounts unpaid on old stock as part of the former’s business and property, to which such stockholder does not assent, and liability for which is based on a statute and not upon common-law principles, especially where the English decisions hold that such a scheme is invalid and that the statute does not make calls upon shareholders any part of the assets of the new company.</p> <p>14. Appeal — Stipulation for Judgment Absolute — New Trial. An objection that a judgment should not have been reversed altogether, but should have been sustained as to part of a claim and judgment for a smaller amount given, cannot he made in the Court of Appeals after stipulation for judgment absolute in case no error was committed in granting a new trial, where the whole claim was treated by the appellant and passed upon below as a single claim, part of'which was invalid, since on such an appeal the order of reversal must be affirmed if the record shows any error by the trial court calling therefor.</p> <p>Bank of China, etc., v. Morse, 44 App. Div. 435, affirmed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. In considering exceptions the defendants are entitled to that view of the evidence which is most favorable to them. (Bonnell v. Griswold, 89 N. Y. 122.) It was error to sustain the objection to the defendants’ question to the plaintiff regarding “ shaving ” the notes which he had purchased from Calkins, the principal maker of the note sued upon.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, enteréd July 19, 1899, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court iir the first judicial department, entered July 26, 1900, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to obtain an injunction restraining the defendants from maintaining an elevated railroad station structure on Park avenue in the city of New York and for damages.</p>

Appeals from judgments of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 12, 1899, affirming judgments in favor of plaintiffs entered upon the report of a referee.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 22, 1899, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court and' an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 23, 1900, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 6, 1899, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, made July 9, 1901, which reversed an order of Special Term confirming an assessment for taxation on the relator’s real property for the year 1900, and canceled such assessment.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 7, 1901, which affirmed an order of the Special Term upon habeas corpus proceedings discharging the relator from the further custody of the defendant.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 12, 1901, which dismissed a writ of certiorari to review the determination of the defendants in removing the relator .from the police force of the city of New York and affirmed the proceedings.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, made July 9,1901, which affirmed an order of Special Term dismissing a writ of certiorari to review the proceedings of the defendants in assessing the capital and surplus of the relator for purposes of taxation.</p>