Volume 17 — Abbott's New Cases

John Francis brought this action to set aside his conveyance, made to the New York and Brooklyn Elevated Railway Company, of the right of way past certain premises in the city of Brooklyn. He alleged certain fraudulent representations to induce the grant, which are sufficiently referred to in the opinions below. On the trial at special term, it appeared that the grant by plaintiff was in consideration of certain capital stock issued to him by the defendant company.

Trial by the court. Daniel Goldsmith brought this action against the Union Life Insurance Company and one Lina Manly, formerly his wife, and since divorced, for the reformation of certain life policies which he had taken out for her benefit as his wife. The material facts sufficiently appear in the opinion.

Demurrer to complaint. S. Townsend Peckham brought this action against Ms sister, Mary E. Grrindlay, and the Manhattan Life Insurance Company, to annul a life insurance policy for $2,500 issued by the company to the defendant Grindlay, upon her application, and on plaintiff’s life.

The action was brought by Robert B. Roosevelt, as president of the New York Association for the Protection of Game, against Edward Eckard. The nature of the action and the material facts appear in the opinion.

<p>Motion to punish Greorge Herman, one of the defendants, for contempt.</p> <p>The material facts appear in the opinion.</p>

Proceeding by the administrators of the estate of Mhry A. Smith to obtain possession of savings bank pass-books as belonging to said estate. The facts appear in the opinion.

Trial by the court. Cynthia S. Weaver brought four separate actions against the Emigrant Industrial Savings Bank and three other' savings banks in the city of New York, joining as defendant, Abram Lott, as the executor of the will of Isaac S. Allen, her father, to establish that certain deposits were made in trust for her benefit. It was found that Isaac S; Allen, in his lifetime, made separate deposits, to a considerable amount, in each of the said banks.

Motion by the defendant for a d°w taxation of costs. The action was for the conversion of a mortgage upon land in Russia. Upon the first trial, the jury disagreed, and upon the second, the plaintiff recovered. The clerk having taxed in the plaintiff’s bill of costs two trial fees, defendant moved for a new taxation.

Action by Charles A. Clegg against Andrew J. Aikens and others, for damages for breach of a contract as to advertising. The order of October 15, 1883, referred to in the opinion, appointing a new referee, provided, among other things: i6 6th. That the amounts heretofore paid by the respective parties for referee’s fees and stenographer’s fees shall be taxed by the successful party as disbursements in the case. 7th.

<p>Motion for a re-taxation of costs, in the nature of an appeal from taxation by the county clerk.</p> <p>The material facts appear in the opinion.</p>

Petition by the plaintiff for the appointment of a guardian ad litem of infant defendants. This action was brought by Julia Mace against Rosena Scott and three others, for the partition of real estate situated in the city of New York. The material facts appear in the opinion.

William J. Bannerman sued “ John E. Quackenbush- & Son,” as copartners, for goods sold the firm. John E. Quackenbush was the only defendant who was served with the summons. He answered separately, setting up an off set for a debt due the firm, and served with the answer an offer to allow judgment to be taken “against him” for a sum specified, with interest and costs.

<p>Contempt ; pen,jury in answer.</p>

264), c. 267, of the Carpenters’ and Joiners’ Union, No. 6, of the city of Amsterdam.

<p>Action to dissolve Corporation.—Pleading; complaint; leave to sue; demurrer.—Corporation, when insolvent; CESSATION OF BUSINESS.</p> <p>In a stockholder’s action to dissolve a corporation, the complaint states a cause of action for dissolution for insolvency and suspension of business, within Code Civ. Pro. § 1785, where it alleges that the debts of the company have remained unsatisfied for many years, and will continue so to remain, because it is without means of payment, and that the corporation has become and is insolvent and unable to pay its debts, and has remained insolvent for one year last past; that it is indebted in- large sums of money to various persons and has no means whatever of liquidating its outstanding indebtedness, and that it has not had the means for more than a year last past; and that, though its property consists of oil lands to a certain extent developed, but little, if any, oil for many years has been taken from its wells and mines, and that the supply of oil has gradually diminished until the operation of them has ceased, and that the principal i'esources of the corporation were their production of oil; and that, by reason of the failure of the wells and mines to further yield oil, and the failure to operate them, the corporation has become and is crippled in its supply, rendering it wholly impossible to continue the existence of the same without loss and damage. So held, on demurrer for insufficiency.</p> <p>In such an action, the leave to sue required by Code Civ. Pro. § 1786, sufficiently appeals from allegations showing an application to the attorney-geneial requesting him to commence an action on behalf of the people to dissolve the corporation; that more than sixty days have elapsed since a statement of facts verified on oath was submitted to him, and that he has omitted, for sixty days after such submission, to commence the action, and that, upon his refusal to proceed, the plaintiffs applied to the supreme court at special term for leave to bring the action, and that such leave was duly granted.</p> <p>Where two causes of action are set up in the complaint, and a general demurrer is interposed to them, if either cause of action is sustained, the demurrer must be overruled.</p>

<p>Action on Peomissoby Notes.—Partnership; limited ; actual BECOBD OF CERTIFICATE ESSENTIAL.</p> <p>Under the Limited Partnership Act (1 S. S. 765, §§ 4-8; same stat. 3 R. S. [7 ed.] p. 2235),—providing that no limited partnership “shall be deemed to have been formed, until a certificate shall have been made, acknowledged, filed and recorded,” as required by the act,—the neglect of the clerk to record the certificate, although it be delivered to him for the purpose, is fatal, and the intended special partner remains liable as a general partner.†</p>

<p>Action foe goods sold.—Partnership, limited; false statement IN CERTIFICATE ; RENEWAL CERTIFICATE.</p> <p>If, at the moment a limited partnership is formed by the act of filing the certificate required by section 4 of the limited partnership act (1 R. S. 765; same statute, 3 R. S. (7 ed.) 2334), all the statements in the certificate are true, there is both a substantia] and a literal compliance with the statute, and the special partner does not incur the liability of a general partner.</p> <p>It is immaterial that at the date of the certificate, and at the time when it was signed by one partner, the special capital had not been paid in as therein stated, since the paper instrument docs not become the certificate referred to in section 8, imposing general partnership liability for false statements therein, until it is a completed instrument, and made, acknowledged, filed and recorded, so as to create the partnership.*</p> <p>The case of Durant v. Abendroth, 69 N. Y. 148, distinguished. Under section 11 of the act,—providing that “ every renewal or continuance of such partnership, beyond the time originally fixed for its duration, shall be certified, acknowledged and recorded, and an affidavit of a general partner be made and filed, and notice be given, in the manner herein required for its original formation; and every such partnership» which shall be otherwise renewed or continued, shall be deemed a general partnership,”—the partnership may be renewed by filing and recording papers containing the same statements that are contained in the original papers.</p> <p>The statute docs not require actual contribution by the special partner to the renewed partnership, but clearly intends that the partnership shall continue with the special partner's capital invested, as it may be on the date of the renewal, in the common stock of the firm.</p> <p>If the renewal certificate and affidavit are in proper form, the penalty imposed by section 11, of general partnership liability, is not incurred by the falsity of the statements therein.</p> <p>So held, where the renewal corticate and affidavit stated that the capital which the special partner had contributed to the original partnership “remains wholly unimpaired; and the said amount, namely, one hundred thousand dollars, has been contributed by the said special partner to the common stock of the renewed and continued partnership,” and the firm was at the time of the renewal wholly insolvent, and the special capital had been wholly lost.</p> <p>Proof that upon tire" same day that the special capital of $100,000 was paid in in cash, the firm paid $80,000 theieof to a dissolved firm, to the business of which it succeeded, in payment for its stock (it being fully worth the sum paid), and that the dissolved firm thereupon on the same day paid a debt of about §91,000 due a firm of which the special partner was a member with about forty-five per cent, interest therein, and also a debt of about §16,000 due the special partner individually,—held, not to justify an inference that the special partner did not pay in his capital in entire good faith, in the absence of proof of any preconcerted agreement as to the use to be made thereof.†</p>

<p>Creditor’s Action to set aside General Assignment.—Assignment for Benefit of Creditors; by surviving partner; CONFUSION OF FIRM AND INDIVIDUAL ASSETS AND DEBTS ; WHO MAY impeach; preference of individual CREDITOR.</p> <p>An individual creditor of a surviving partner, cannot maintain a creditor’s action to set aside a general assignment of the assets of the firm made by the surviving partner. The right to do so is in the representatives of the deceased partner, and perhaps in the partnership creditors.*</p> <p>On the death of a partner, the surviving partner continued business in the firm name, without distinguishing between the transactions and assets of the firm and himself individually, and subsequently made an assignment individually and as surviving partner, transferring all assets, without properly discriminating in the directions of the assignment or in the schedules, between firm and individual assets or between firm and individual debts. Held, that one who with notice of the dissolution had dealt with the survivor as if there had been no dissolution, and who, although, therefore, only an individual creditor, was scheduled as a firm creditor, was not entitled to have the assignment set aside; for an accounting could determine the rights of the representatives of the deceased and the respective creditors in the mingled mass of assets, and equity should sustain such an assignment in the absence of actual or constructive fraud.</p> <p>Only copartnership creditors, suing as such, can raise the objection that provision is made in an assignment for payment of individual debts out of firm assets.</p> <p>A surviving partner borrowed money to pay a debt of the late firm; and on making an assignment of the assets of the firm and of his own, preferred the lender, as a partnership creditor. Held, that this did not avoid the assignment, for the lender might be treated, as a partnership creditor, by subrogation.</p> <p>An individual creditor ivho is provided for cannot impeach an assignment merely because another individual creditor is not provided for.</p> <p>An assignment is not void because of provisions applying individual property to pay partnership debts.</p>

I. October, 1885. Trial by the court. This is an action in the nature of a creditor’s bill, brought by the plaintiffs, who are judgment creditors of the defendants Burger, Hurlbert and Healey, against the said defendants, Burger, Hurlbert and Healey, and Frank H. Platt, to set aside an assignment dated September 11, 1884.

Trial.by the court. Levi L. Brown, and others, brought this action as judgment creditors of the firm of Halsted, Haines & Co., against William M. Halsted and others, composing the firm, and their assignee for benefit of creditors, to set aside an assignment, made by tlie firm as copartners and individuals, as fraudulent against the firm’s creditors.

<p>Creditor’s Actions.—Stay op Proceedings; stay op other ACTIONS APTER TRIAL OP ONE ACTION TO SET ASIDE GENERAL ASSIGNMENT.</p> <p>Where one of fifteen actions, brought by judgment creditors to set aside as fraudulent an assignment by a firm for the benefit of its creditors, had been tried, and a judgment recovered for the defendants, and upon motion for a stay of the trial of the other actions until the determination of an appeal taken from said judgment, it appeared that proof to overthrow the assignment beyond that adduced in the action already tried, would be given in one of the other actions, Held, that the latter action should be allowed to be brought to trial, but as that trial would present all that could probably be shown against the legal validity of the assignment, a stay of proceedings in the other thirteen suits, until the hearing and decision of the appeal, and the trial and decision of such action, should be ordered.</p>

Appeal by the defendants from that part of an order allowing service of a supplemental answer, which permitted plaintiffs to serve an amended or supplemental complaint. Creditor’s action by Levi L. Brown and others, to set aside an assignment to Lewis May by William M. Hals led and others, for the benefit of their creditors. See the case of Brown v. Halsted (ante, p. 197), for a statement of facts.

<p>'Creditor’s Action; defense; fraudulent recovery of plaintiff’s judgment.—Judgment; effect of agreement1 before recovery not to enforce.</p> <p>In a creditor’s action, defendant may set up that plaintiff's judgment was fraudulently recovered.*</p> <p>A judgment creditor will not be allowed to enforce his judgment against the defendant therein, in violation of a representation and agreement, by means of which he induced the latter to permit the judgment to be recovered.</p>

<p>Enticement.—Husband and Wife; wife’s action for enticing away husband; intent; proof of harboring. —Damages ; exemplary.</p> <p>A wife may maintain an action against a woman who alienates her husband’s affection and entices him away from her, so as to deprive her of his society and adequate support.*</p> <p>Intentional alienation must be shown. It is not enough merely that defendant kept a bawdy house, and the husband went there and associated with her.</p> <p>Nor is it enough to show that defendant harbored the husband. The sufficiency of a fact of harboring in a husband's action, depends on his right to fix the abode.</p> <p>In such an action the damages may include not only compensation for loss of support and maintenance, but also exemplary damages.</p>

Trial at circuit. The nature of the action, and the substance of the testimony, appear in the charge of the court, which was as follows:

Reference of a motion by the plaintiff for alimony and a counsel tee,pendente lite, in a wife’s action for-limited divorce on the grounds of abandonment and cruel and inhuman treatment. By an order of the court the matter was referred to' a referee to take proof of the facts, and to give an opinion as to what, if anything, should be allowed to the plaintiff for a counsel fee and alimony.

<p>Divorce; Condonation of Adultery; Cruelty; Abandonment.</p> <p>To establish condonation as a defense to an action for divorce for adultery of the wife, it is not only necessary that the husband, should have full knowledge of the facts, but that he should be able to prove them.</p> <p>Hence, a private oral confession by the wife to the husband would not suffice, as there would be no mode of proving the confession under the law as it stands.</p> <p>Nor would mere circumstances of a suspicious nature be sufficient to constitute knowledge.</p> <p>It is further necessary that the husband should believe the wife to be guilty.</p> <p>A knowledge of the fact implies not merely an acquaintance with the facts concurring to prove a particular charge of adultery,' but of all then existing charges of adultery.</p> <p>Cruelty of the husband will not affect his right to a divorce for the wife’s adultery; but under Code Civ. Pro. § 1765, her adultery precludes her from obtaining a separation upon the ground of his cruelty.</p> <p>Cruelty is a wrongful act or omission by one of the parties inconsistent with the discharge of the duties of married life, and may be either</p> <p>1. An act causing or threatening personal injury to life, limb or health.</p> <p>2» Words inflicting indignity and threatening pain, which does not include mere words of abuse, though it may mean opprobrious words by way of aggravation.</p> <p>3. In general, a wrongful act or acts plainly subversive of the marriage relation, and making it impossible that the duties of married life be properly discharged.</p> <p>A single act of a sufficiently aggravated character may suffice to constitute cruelty; and where acts are not so highly aggravated, a number may be considered together as showing a course of conduct. Where an act constituting cruelty is proved, minor acts of a similar kind may be shown by way of aggravation, and even acquired feelings arising from particular rank and station may be taken into account in this way.</p> <p>Privity of the wife with a conspiracy to induce the husband to commit adultery or to place him in equivocal relations with a woman not his wife, so as to bring an action for divorce upon the evidence thus obtained, constitutes cruelty sufficient to sustain his action for separation, under the rule that cruelty includes such acts as render the proper discharge of the duties of married life impossible.*</p> <p>To constitute an abandonment under Code Oiv. Pro. § 1762, as a ground fora judicial separation, there must be a final departure with the intention not to return, without sufficient reason therefor, and without the consent of the other party.</p> <p>The test is the intent at the time of the departure, for if the desertion be in itself complete, a subsequent offer to return will not avail, as the deserted party has a legal right of which he cannot be deprived without his concurrence.</p> <p>The circumstances and manner of departure may properly be considered to show the intent.</p> <p>The practice upon entry of judgment in actions for divorce—stated. Where the husband obtains judgment for absolute divorce for the wife’s adultery, he has an absolute right to the custody of the children, unless their good requires some other disposition of them. There is no express provision of law in such case enabling the court to give the custody of the children to the wife.</p>

<p>Void marriage ; Action to set aside after decease of party.</p> <p>An action will not lio to set aside a void marriage after the decease of one of the parties.</p> <p>The subject of divorce is exclusively regulated by statute, and actions relating thereto can only be maintained pursuant to statutory provisions.</p>

<p>Imprisonment ; application pob discharge under Code Civ. Pro. § 8208 ; Expenditure op income.</p> <p>A judgment debtor imprisoned on execution is not entitled to his discharge under the statute,* if it appears that he has been in the enjoyment of an income, and expended it in the support of his family,—in this case liis father and mother,—without any effort to pay the judgment, and the circumstances are stick that he might have set apart a portion of his income to apply on the judgment; for omitting to $o so is not “just and fair.”</p> <p>USo held, where the debtor was on the limits, receiving a salary of §1,200 per annum as a policeman, and the judgment was for damages to a poor person for physical injuries inflicted by him.</p>

<p>Injunction.&emdash;Railroads ; right of lot owner to compensation FOR USE OF STREET.&emdash;JUDGMENT.&emdash;DEED ; DESCRIPTION.</p> <p>An owner of land, bounding on a street (although the fee is not in him), having an easement in the street, can maintain an action against a surface steam railroad company who occupy the street, without making him compensation, for the impairment of his easement.</p> <p>In such case, in an action for an injunction, the court may ascertain the damages and give judgment, declaring the plaintiff’s rights and providing for the payment of damages upon a release being given and (in default of payment after tender of release) an injunction.</p> <p>Form of judgment to this effect.</p> <p>Where a lot was described as bounded by a line running from a point in the north line of a street, a specified distance “ to an alley,” and thence “ on said alley,” «fee., but the distances given in feet excluded the alley, and the description of another lot, conveyed by the same deed, clearly excluded the alley, its lines being run to “ the north line ” and “ along the north line ” thereof, it seems, that the distances controlled, and the deed conveyed no part of the alley.</p>

<p>Injunction.—Pleading ; Complaint ; Cause of action, whether LEGAL 03 EQUITABLE.-TSIAL ; By JURY OR AT SPECIAL term; Waiver of right to trial by court; Verdict to support judgment.</p> <p>A complaint alleging the construction by a railroad company of an elevated railroad and station, in the street, in front of plaintiffs’ land and buildings, and the impairment of light and air thereby, and the existence of incessant noise, noxious smells, &c., resulting therefrom: the consequent loss in rental value of the buildings ; that, plaintiffs have been already damaged to the amount of $80,000, and that, if the structures and their use be continued, plaintiffs’ property will be permanently depreciated in value to the amount of over $200,000, and plaintiffs suffer a permanent injury to that amount; that damages alone will not be an adequate remedy for the injury resulting from a continuance of the railroad and station; and demanding judgment for $80,000 damages already sustained, and that defendants be enjoined from maintaining or operating the railroad, and that they abate the use of and remove the railroad and the station from the street in front of plaintiffs’ premises, or that the defendants be permitted to continue the existence of the railroad and station only on condition that the plaintiffs be first paid the sum of $200,000, and that until payment thereof the operation of the railroad be enjoined, but containing no allegation that the erection of the railroad structures or the operation of the railroad was without the authority of the legislature—states a cause of action in equity to restrain the defendants from continuing to use and occupy with their railroad the portion of the street adjoining plaintiffs’ property, and is not an action to abate a nuisance. '</p> <p>The trial of such an action before a jury as an action at law, against ■ the defendants’motion-that the cause be stricken from the calendar of the trial term, and ordered to be tried at a special term as an equity case, is error, requiring a reversal of the judgment.</p> <p>The defendants’ right to a trial before the court without a jmyis not waived by serving cross-notice of trial at a jury term, the action being for damages already sustained and an injunction, so that plaintiffs could waive the claim for equitable relief and be entitled to a trial by jury for the damages claimed, where the defendants move ns soon as it is developed by the opening of the case that, the claim to equitable relief will be insisted on.</p> <p>Keither is it waived by the’defendants’appearing on several days when the cause was called on the day calendar at the jury term, and having the case marked “ready,” and “passed for the day,” “ready by consent," &c.</p> <p>The defendants’ answer having put in. issue the allegations of the complaint, that the structures described therein impaired the light, air and ventilation of plaintiffs’ premises, and that the operation of the road appropriated any part, of plaintiffs’ property, judgment for • the relief demanded could uot be entered without a finding of fact that plaintiffs’ easement in the street was occupied by defendants.</p>

This is an application by the attorney general, in behalf of the people of the State, against the N. Y., Lake Erie & Western Railroad Company, for a peremptory mandamus to compel the company to provide a suitable depot upon the line of its road at the village of Hamburg, in Erie county, for the accommodation of passengers and freight.

» Action for rent of the fourth floor of an apartment house in the city of New York. The material facts appear in the opinion.

<p>Action for money Paid.—Lease; covenant of lessee to make repairs.</p> <p>Under a lease of a dwelling-house in the city of New York, wherein the defendant as lessee covenanted during the term “ at his own cost and expense, to make and do all repairs required to the plumbing work and pipes, range and fixtures belonging thereto, and to keep the croton pipes, and the connections with the croton main, free from ice and other obstructions at his own expense, and to keep the sewer connections free from obstructions to the satisfaction of the municipal and police authorities, and not to call upon ” the lessor, plaintiff, for any disbursements or outlay during the term, and to promptly execute and fulfill all the city ordinances applicable to said premises, and “all orders and requirements imposed by the Board of Health and Police Department, in, upon, or connected ” with the premises, during the term, at his own expense —Held, .that the defendant was bound to repay to the plaintiff the amount expended by him for plumbing work upon the premises, during the term, upon the defendant’s complaint to the board of health of sewer gas, <fcc., in the house, although an order o,f the board for the repairs to be made by the plaintiff was outstanding when the lease was made, and defendant had then no knowledge thereof.</p>

I. November,, 1885. Petition for the removal of executors of the last will, &c., of Wolf Fernbacher, deceased. The material facts appear in the opinion.

Trial by the court. Action to foreclose a mechanic’s lien by Charles G. Duffy against Mary E. Baker and Seward W. Baker. The plaintiff in this action claims to enforce a mechanic’s lien for $385.19 against the real estate of the defendant Mary E. Baker, who is the wife of the defendant Seward W. Baker, and is the owner of a dwelling house in the town of Whitestown.

<p>Certiorari to review determination of State assessors; questions TO BE DETERMINED; PREPONDERANCE OF PROOF.</p> <p>Tile court will not reverse a dec! ion upon certiorari, as against the preponderance of evidence, under Code Civ. Pro. § 2140, ¡ubd. 5, if there was evidence before (lie body whose decision is sought to be reviewed, legitimately tending to support the determination as to all material facts.</p> <p>So held, upon certiorari to review the decision of the State assessors upon appeal by the supervisors of a city from the equalization of assessments of the county made by its board of supervisors, the material fact being the value of the real estate of the several towns and in the city.</p>

Mary Ann Doherty, and others, as grantors of Charles Jones, brought this action of ejectment against George W. Matsell, Jr. and another, under the Code of Civil Procedure, section 1501.

Trial by the court. Henry H. Seymour sued Mathias Smith and Cornelius J. Donovan, upon an undertaking on appeal.

Demurrer to complaint. Fanny Halsey sued John F. Gerdes in ejectment for certain premises in the city of New York. . The complaint alleged ‘1 That the plaintiff is seized in fee of the following described premises (describing them). That the defendants are in possession thereof and withhold the same from her,” and demanded judgment: I. For the possession of said premises. II. For the sum of $1,000, plaintiff’s damages by the withholding of the same.”

in favor of defendant, for no cause of action. Jerry Kelderhouse brought this action as trustee of school district, No. 5, town of Hamburg, Erie county, against Silas S. Brown, for damages for trespass in breaking and entering the school-house-of the district. The facts appear in the opinion.

This action was brought by Nelson D. Morehouse, respondent, against Joel B. Morehouse, by Charles E. Tourtellot, committee of his person and estate, appellant, impleaded with Talcott B. Morehouse, to foreclose a mortgage on real property. Facts. 1.

Submission of controversy upon agreed statement made between Minnie Bayer, as general guardian of Edwin M. Bayer and Stephen A. Bayer, infants, with James L. Phillips. The plaintiff was a judicially appointed guardian of the persons and estates of these infants, and to her, as such, a bond and mortgage forming part of the personal estate of the infants had been assigned.

Appeal by defendant from a judgment recovered on the verdict of a jury and from an order denying a motion for a new trial. Samuel Bingham and another, as administrators, etc., brought this action against the Marine National Bank of the city of New York, and Walter S. Johnson, as receiver of the bank, on a certificate of deposit.

Petition of Frederick Henry Maitland to admit his succession and declare that he was of right entitled to the dignities of Earl of Lauderdale, Sea., in the peerage of Scotland. The petitioner claimed by descent from Richard Maitland, the fourth son of the sixth carl of Lauderdale.

<p>1. Expulsion of member of social club; remedy.] Where a large majority of the governing committee of 'a club 'voted to expel plaintiff for misconduct, after a submission,of the-facts to them,— Held, that plaintiff was not obliged before appealing to the courts for re-instatbment to avail himself of a rule of the club permitting him to apply for a rehearing to such committee, within the principle that actions.will not be sustained to correct illegal acts of such organizations, until the remedies provided for that object by their by-laws, or constitution, or both, have been exhausted ; the probability of favorable action upon a rehearing before the persons who have already formed and acted upon convictions adverse to the plaintiff is too remote.</p> <p>2. ' The same; trial'by governing committee; 'notice and opportunity to be heard.] The governing committee of t.bp club;havjug sole power to determine the case appointed a sub-committee to investigate and report the facts. The sub-committee notified plaintiff to appear before them, and he did so, and the committee received his statement and the statements of other persons concerned. The govern-</p> <p>. ing committee received and acted upon the report of the sub-committee and adopted a resolution expelling the plaintiff without notice to him or opportunity to appear before them and be heard. In an action to compel the club to rescind such resolution, —Held, that it was the duty of the governing committee to have given notice to the appellant of the time and place of the trial,</p> <p>- with reasonable opportunity to attend and defend himself against the charges, and not having done so, they had no jurisdiction to ■ pronounce an effective judgment, and, their action was coram non judice,- and void. ,</p> <p>3. The same.; iwodhirds vote of committee necessary to expel member.] The fourth article of the constitution of the club rnade “ a two-thirds vote of the governing committee,” necessary to expel a member. The twelfth article declared that “ a majority of its mom hers, exclusive of those absent by its permission, shall constitute a quorum of the governing committee,” Held, that a resolution of expulsion which failed to receive a two-thirds vote of the committee, although it received a two-thirds vote of a quorum of the committee, as it then existed, as reduced by vacancies in the committee, was inoperative upon the rights of . the plaintiff (Per Daniels, J.).</p>