Volume 19 — Abbott's New Cases

I. General Term, April, 1887. Motion for stay of proceedings pending appeal taken from an order made upon a motion for peremptory writ of mandamus to compel respondents to exhibit to relator, a stockholder in the St. Louis & San Francisco Railway Company, at all reasonable times during the usual hours of business, the transfer books and list of stockholders of the company.

Trial by the court. Action brought by James H. Searles, as surviving executor of the will of Loring L. Lewis, deceased, against Lizzie L. Brace, and others, for the construction of the will.

This action was brought by Julien T. Davies, as receiver of the assets of the firm of Grant & Ward, against James D. Fish and John H. Morris, as the assignee for benefit of creditors of Fish, and others, to establish and enforce as a first preference upon moneys in the hands of said assignee, a claim for money alleged to have been fraudulently and wrongfully withdrawn by Fish from the assets of the firm of Grant & Ward, of which he was a member, and to establish and enforce…

<p>Appeal from an order made at special term denying a motion to continue an injunction pendente lite.</p> <p>The facts appear in opinion.</p>

Exceptions of the plaintiff ordered to be heard at general term in the first instance. The nature of the action and the material facts fully appear in the opinion.

Demurrer to answer. Two actions were brought by Alice Richards, one against Charles Crocker and the other against Samuel H. Kinsley, to recover the amount of plaintiffs claims against the American Opera Company, a corporation organized under the act of 1875, chap. 611, upon the grounds set forth in the opinion.

<p>1. Subscription to stock of business corporation.] Under section 5 of the business corporation act (L. 1875, c. 611), providing that “no subscription to the capital stock shall be received,” unless the subscriber then pay ten per cent, of the par value in cash, a subscription unaccompanied by the required ten per cent, is void.</p> <p>2. The same; stockholder’s liability to creditors.] Such subscription being void, the subscriber does not become a stockholder even as to creditors, and cannot be held individually liable for the debts of the company, until the full amount of capital stock has been paid in, and a certificate thereof duly made and recorded.</p>

<p>Business corporations; recovery of judgment before suing stockholder.’] Stockholders in limited liability companies,formed under the business corporation act of 1875 (c. 611), cannot be sued by a creditor . of the company for unpaid subscriptions, or on account of unpaid capital stock, until the creditor has first exhausted his remedy against the corporation by recovery of 'judgment and the return of an execution unsatisfied.*</p>

<p>1. Business corporations; liability of stockholder to servants, <6c.J Stockholders in a business corporation created under L. 1875, c. 611, are not under any special liability to laborers, servants or •apprentices for services performed to the corporation. Such special liability is peculiar to the general manufacturing act of 1848 (c. 40).*</p> <p>2. The same; return of execution before suit against stockholder.] No action can be maintained by a judgment creditor to enforce the individual liability of a stockholder in a business corporation, until execution has been issued and returned unsatisfied.</p>

<p>Liability of executors to person paying funeral expenses.] Where the husband incurs and pays the funeral expenses of his deceased wife , to a reasonable amount, he has a remedy over against the executors of the deceased for the sum so paid, if they have sufficient assets in their hands.*</p>

<p>1. Complaint for injunction against use of tradema/rTc ; label.] A complaint by certain members of cigar makers’ unions, showing the adoption, ownership and use of a trademark or label upon the cigars made by the members of such unions, and the general recognition by cigar makers and the public of their exclusive right to its use, and its use by defendant, who was not a member of any union, upon cigars made by him, and their sale with fraudulent intent to induce purchasers to believe that the cigars were made by members of the cigar makers’ unions, and irreparable damage to the plaintiffs therefrom, shows good ground for equitable relief and protection by way of injunction.</p> <p>2. Parties plaintiff; members of unincorporated association.] The provision of Code Civ. Pro. § 448, allowing suit by one or more persons for the benefit of all who are united in interest, where the parties are so numerous that it is impracticable to bring them all before the court, applies to actions by individual members of an unincorporated association, although § 1919 provides for suit by the president or treasurer thereof.</p>

Motion to confirm report of a referee appointed by the court, to determine what claims of creditors are liens upon the surplus arising from the foreclosure of a mortgage in the above entitled action, and their priorities. The material facts sufficiently appear in the opinion.

I. General Term ; May, 1887. Appeal by the two infant defendants, Mary A. Howard and James 0. Howard, claimants upon surplus-moneys herein, from an order of the special term overruling exceptions to the report of a referee, and confirming his report, and directing distribution of the surplus-moneys in accordance therewith.

Administrator’s accounting. Robert Braithwaite, while domiciled at the city of Rochester,'Hew York, made his last will and testament, which was duly executed according to the laws of this State, on December 21, 1869, and thereafter he likewise made a codicil to said will, dated June 19,1873. By these instruments he gave his entire estate in equal shares to his two living children and a grandson, making no mention therein of the person who afterwards became his wife.

Petition of John Pennie to vacate an assessment for the paving, etc., of Second avenue, in the city of Albany. The facts appear in the opinion.

defendant to the complaint, on the ground that it does not state sufficient facts to constitute a cause of action, and from the judgment entered on said order. The facts alleged in the complaint are that Margaret Ann White, the defendant’s testatrix, on July 15, 1873, conveyed' certain premises, the property of Elizabeth 0.

Appeal’ from a judgment entered upon the dismissal of the plaintiffs’ complaint. The material facts appear in the opinion.

<p>1. Habeas corpus; commitment to reformatory institution.] Where, upon the return to a writ of habeas corpus on behalf of a female detained in the House of Mercy, it appears that she was committed to that institution by a police magistrate in proceedings in conformity with section 1466 of the Consolidation Act of New York city (L. 1882, c. 410, as amended by L. 1886, c. 353), upon proof that she was over the age of twelve years, to wit, twenty-two years of age, and was found in a reputed house of prostitution, and the commitment recites the several facts necessary to show jurisdiction and that the conviction was upon sufficient evidence of the charge, the petition should be dismissed, and the relator remanded.</p> <p>2. Commitment not invalid for defect in form.] Where the commitment recites the facts upon which it is based, it cannot be deemed invalid by reason of any imperfection or defect in form.*</p>

I. Special Term; January, 1887. Petition- for writs of habeas corpus and certiomri by Elizabeth Van Riper, directed to The New York Catholic Protectory, to compel respondent to produce the body of Florence Van Riper, the child of the relator, and to certify the cause of her detention by the respondent.

Motion to set aside execution against the person. September 10, 1886, a judgment was entered in the office of the clerk of the county of Chenango for $1,326.12 damages and costs, in an action, the nature of which authorizes the imprisonment of the defendant upon an execution. September 11, 1886, an execution was duly issued against the defendant’s property, which was duly returned wholly unsatisfied, and November 11, 1886, filed in said clerk’s office.

Trial before a referee. John Grey brought this action against the Sheridan Electric Light Company, for rent upon a written lease of the upper stories of a building, with steam power. Prior to this action the plaintiff brought an action for rent accruing during another period under the lease in question, in which a counterclaim was interposed for breach of plaintiff’s agreement to furnish steam power.

<p>1. Taxation of property owned■ by the State or municipality.] The general rule of law is that property owned by a State, or by the United States, or by a municipality for public use, is not subject to be taxed unless so provided by positive legislation.</p> <p>2. The same; lands owned by city in connection with ferry franchise.] Within this rule, lands owned by the city of New York, situated in the city of Brooklyn, and leased to a ferry company under a ferry franchise granted to the city by the State solely for the public benefit, and the revenues of which are exclusively devoted to public purposes, are, like the franchise itself, exempt from taxation by the city of Brooklyn.</p>

A demurrer to a portion of defendant’s answer which set up new matter, was sustained after argument, “ with costs.” The plaintiff presented for taxation a full bill of costs which the clerk taxed against defendant’s objection to every .item thereof, except §20 for the trial of an issue of law.

<p>1. Costs paid upon opening default, taxable.] Upon application of defendant to open a default taken at the trial term, the court opened the default upon condition of payment of §20 costs, and the witness fees, for the day default was taken. Held, that the plaintiff was entitled upon recovery at a trial thereafter, to tax the full bill of costs without deducting the §20 paid to open the default.*</p> <p>2. Costs; trial fees.] The successful party being entitled by the Code to tax a fee for each trial, the plaintiff in such case is entitled to tax two trial fees.†</p>

Motion by Mrs. Hetty H. B. Green to open the report, and refer this ease back to William S. Keiley, referee, with liberty to prove her claim of $560,000, and file objections to the assignee’s account. On January 15, 1885, John A. Cisco and Frederick W. Foote, bankers, composing the firm of John J. Cisco & Son, made an assignment for the benefit of their creditors to Lewis May. The assignment contained no preferences except to employes.

Appeal by the defendant from an order made at Special Term appointing a guardian to appear and defend the action on behalf of the defendant, a lunatic.

<p>1. Jurisdiction of N. T. City Court; title to land.] Th$ jurisdiction of the city court of New York, since the passage of L. 1875, c. 479, § 1, in ordinary common law actions, is neither divested nor impaired by the fact that the title to real property arises upon the pleadings or is presented for adjudication.</p> <p>. 2. The same; action to recover lack deposit on contract to purchase land.] So held, overruling demurrer 'to complaint in an action to recover back a deposit, made on a contract for the purchase of realty, subsequently rescinded by the vendee -on the ground that the title of the vendor was defective.</p>

The defendant, a resident of the city of New York, sent . his son, then sixteen years of age, to attend school, at Exeter, New Hampshire. While there the son, in November, 1885, obtained from the plaintiff winter clothing, including an overcoat. The clothing was reasonably worth $80.

Motion to continue an injunction pendente lite. Elizabeth B. Gere and others, brought this action on their own behalf and in behalf of all other stockholders in the New York, Central & Hudson River Railroad Company, against that company, - and the New York, West Shore & Buffalo Railroad Company, and the members of the firm of Drexel, Morgan' & Company, and others, to restrain the consummation of a lease between the railroad companies.

<p>1. Subscription to stock; secret advantage to subscriber.] A private agreement with one of several associate subscribers to the capital stock of a corporation, in consideration of and as a part of his-contract of subscription, to repurchase his stock at the price paid within one year, at his option, is fraudulent and void, and incapable of enforcement in his favor; though, it seems, that he remains liable upon his subscription.*</p> <p>2. The same; contract of third parties.] It is immaterial that the-agreement was not made with the corporation or its trustee for the sale of the stock, but with outside parties, who were the projectors and promoters of the enterprise, and represented the company, owning a large part of its stock received in payment of a patent, etc., and being directly interested as principals in securing the subscription to the stock in question sold to raise working capital.</p> <p>3. The same.] Nor is it material that some others of the associate subscribers also received a similar agreement to re-purchase their stock, if there were any subscribers who did not, and who knew nothing of the agreement.</p>

<p>1. Tax vpon collateral inheritances; appointment of appraisers.] An* appraiser should be appointed by the surrogate under L. 1885, c. 483, only where specific legacies, subject to tax under that act, are given, or where L.xable inheritances exist, or estates in fee are devised, or remainders, annuities, life estates or terms of years, are created.</p> <p>2. The same; payment of lax, how compelled,.] It is only in such cases, and not where legacies in money only are given, that the county treasurer may require the district attorney to apply for citation to all persons interested, to show cause why the tax should not be paid, and the decree made, docketed against the “persons-interested in the property liable to the tax.”</p> <p>3. The same ; duty of appraiser.] It is not the duty of an appraiser, appointed under the act, to appraise the whole estate of the decedent, but only the estates of the persons whose estates are inherited or created by will, and which are subject to the payment of the tax.</p>

I. May, 1887. This proceeding was instituted by the district attorney of Kings county upon petition for a citation to require the executors of the will of Hannah Enston, deceased, to show cause why they should not pay the amount of a tax .alleged to be due upon property given by the will to collateral relatives, etc. The proceeding was taken under L. 1885, c. 483, by which (§ 1) “ all property which shall pass by will or by the intestate laws of this State from any person…

<p>The will of Samuel W. Woolsey gave a legacy to Edward McG-arvey, the husband of a daughter of the deceased. She died before the testator.</p> <p>The act of 1885 (L. 1885, c. 483), imposed a special tax upon legacies, etc., “ other than to or for the use of father,, mother, husband,. wife, children, brother and sister and lineal descendants born in lawful wedlock, and the wife or widow of a son and the husband of a daughter, and the societies, corporations and institutions now exempted by law from taxation.”</p> <p>The question in this proceeding was whether the legacy to McG-arvey was within the exemption of the statute.</p>

The Special Term (52 Super. Ct. [J. & S.] 274) held that plaintiff could not recover, because he had no property in Pearl street, which was opened *rior to the conquest of the New Netherlands, and on such conquest vested in fee in New York City. See the facts stated post, pp. 254 el seq.

<p>1. Use of street for elevated railroad; right of public corporation as abutting owner.] A surface street railroad company, owning premises in the city of New York abutting upon a street opened under Act of April 3, 1807,* has a right of property in the street, and the right to an injunction against the operation and maintenance of an elevated railroad therein, under the authority of the legislature.</p> <p>2. The same; compensation.] The fact that the abutting owner is a corporation, and has received its power to operate its road from the State, does not authorize the State to appropriate its property without compensation.</p> <p>3. The same.] Nor does the fact that the corporation purchased property not actually needed for railroad purposes, authorize either the State or the elevated railroad company to appropriate the property so purchased without compensation.</p> <p>4. The same; damages for trespass.] The fact that since the commencement of an action against an elevated railroad company for trespass in using the street in front of plaintiff’s premises for its structure, it has leased the same to another railroad company, does not absolve the defendant from liability for the damages caused by the trespass.†</p> <p>5. Trespass after action brought to enjoin; damages.] Under a comnlaint asking an injunction against the threatened construction of -in elevated railroad in the street in front of plaintiff’s premises, plaintiff cannot recover damages for the construction and operation of the road after the action was begun, without serving a supplemental complaint setting up the trespass.</p>

Motion by defendant to vacate an ex parte order of discontinuance of the action. The evidence was conflicting as to whether the notice ■of defendant’s appearance was duly served prior to the granting of the order of discontinuance.

<p>Extension of time to answer without affidavit of merits.] Where a nonresident plaintiff is required, upon defendant’s application, to file-security for costs, the court may properly extend defendant’s time _to answer until a certain number of days after security is filed, without requiring him to make and file an affidavit of merits.</p>

<p>1. Time to serve answer ; Saturday half-holidayIf the last day to serve an answer falls on Saturday, it must be served on that day, as the provision of Code Civ. Pro. § 788, that if the last day to perform an act falls upon a public holiday, it must be excluded in computing time, does not include the Saturday half-holiday provided for by L. 1887, c. 289.</p> <p>2. The same; extension.] An ex parte order of a judge extending time to answer, made after expiration of the time to answer, is a nullity, and may be disregarded, and judgment entered by default.</p>

William Parry sued the American Opera Company, Limited, for damages for breach of a contract, alleging that the defendant engaged him to act as its assistant stage-director during the operatic season of 1886-7, for twenty-five or more weeks, beginning in October, 1886; that on December 11th he was discharged, after eight weeks of service, and suffered damage including the loss of salary, for the remaining seventeen weeks.

<p>1. Jurisdiction of person; objection by answer.] An objection to the jurisdiction of defendant’s person may be properly raised under the N. Y. Code of Civil Procedure by an appearance of defendant by attorneys “for the purpose of raising the issue as to the jurisdiction of the court only,” and service of a special answer setting up the want of jurisdiction.</p> <p>2. Attachment; levy upon insurance policies, how made.] Under N. Y. Code Civ. Pro., § 649, by which a warrant of attachment must be made “upon personal property capable of manual delivery, including a bond, promissory note or other instrument for the payment of money, by taking the same into the sheriff’s actual custody,” merely serving the warrant and notice upon an insurance company which has issued a policy upon the life of the debtor, without an attempt by the sheriff to take the policy into bis actual custody, is not a good levy upon the policy.'</p> <p>3. The same ; instruments for payment of money.] The provision of section 649 includes not only all instruments like bonds, notes, bills of exchange, certificates of deposit, the title to which may pass by delivery and do not require a formal assignment to enable the holder to sue therein in his own name, but also all other instruments which are unilateral contracts for the payment of money only.*</p> <p>4. The same ; levy on contract of mutual benefit association with member.] But a certificate of membership in a benevolent association which has contracted upon his death to assess and collect from the members and pay over a certain sum to the heirs of the deceased, member, is not an instrument for the payment of money within section 649, and the demand of an heir of a deceased member against the association may be levied upon by service of the warrant of attachment and notice upon the association.</p> <p>5. The same; levy on equitable demand.'] Such a claim against the association is not enforceable exclusively in equity by suit to compel an assessment, but by action at law, as well, for the amount it might have collected ; and hence the claim is not within the rule, which it seems still prevails under the provisions of Code, that an attachment is confined to legal debts as contra-distinguished from equitable demands.</p>

<p>1, Chattel mortgage; after-acquired property.\ The rules against mortgages of after-acquired property, and property not in existence, are subject to an exception in the case of the natural products expected from property already in éxistence and owned by the party; and this exception includes crops and emblements produced by roots which were in the ground at the time of the making of the mortgage.*</p> <p>The case of Cressey v. Sabre 17 Hun, 120, distinguished as a case of summer crops not planted when the mortgage was given.</p> <p>2. Lease ; lien for rent on produce of land.] A clause in a lease of land declaring that the lessor shall have a lien on such produce is valid-as a chattel mortgage if duly filed as such, and is not a more executory agreement for an equitable lien.</p>

<p>Costs to creditor in supplementary proceedings.]—Under Code Civ. Pro; § 2455, the court may grant costs to the judgment creditor in proceedings supplementary to execution, although the debtor pays ther amount due and therefore no examination is had.</p>

<p>Trial -by .the court at Special Term.</p> <p>The facts are fully stated in the opinion.</p>

<p>1. Place of amusement; exclusion of ticket holder.] The proprietor of a licensed place of amusement has the right to exclude a person from entering his premises although the person refused has purchased a ticket of admission thereto. The only remedy of the person excluded is to sue to recover his money back.</p> <p>2. The same; transfer of iielceti\ Such proprietor has also the right to annex to the ticket of admission issued by him the condition that it is not transferable, and that if transferred it shall be worthless. In such case the transferee has no right of admission and the person to whom the ticket was originally issued has no right of action to recover his money back upon the refusal of the proprietor to admit the transferee. If the original purchaser has a right of action to recover back his money after the transfer of such a ticket, it is only after he lias personally presented the ticket and demanded admission thereon and been refused.</p>

<p>1. Usury; what law controls.] The parties to a loan who contract in. . one State and provide for payment in another may lawfully stipu-late for interest according to the law of either State,—that where-the contract is made or that where the money loaned is to be paid,. —as they may in good faith agree. The same; case stated. ] A contract having been made in Rhode Island between defendants, residents of that State, and plaintiff, a, resident of Ohio, a prpmissory note 'was made and delivered there pursuant to the contract, dated and’payable in New York; and New York was also the place of the substantial performance of the controlling provisions of the contract. There was no intent on the part of the parties to evade the usury laws of this State, but the | making of the contract and the delivery of the notes occurred in | Rhode Island as a matter of business convenience. Held, that although the note would have been void for usury under the statute of New York because of a bonus paid the lender, it was valid and enforceable because its legality was to be determined by the laws of Rhode Island.</p>

<p>1. Merger; purchase by junior lienor at foreclosure sale.]■ Where a mortgagee of land purchases at a sale under foreclosure of a prior mechanic’s lien, the mortgage is not thereby merged in the freehold, but the lien of the mortgage becomes by the foreclosure shifted from the land to the surplus, so that the purchaser becomes seized of• the fee, cleared from all incumbrances including his own.</p> <p>2. Reference in surplus money proceedings in foreclosure; equitable claims.] Wherever the facts would warrant the tiling of a bill in equity to declare a lien on a fund, a referee in surplus money proceedings had in foreclosure may hear and determine the application to declare such, lien, and if he is of opinion that it should be granted, report directly in favor of the holder thereof.*</p> <p>3. The same; equitable claim, hoto created.] By the delivery and acceptance of a deed of premises ‘‘subject to all contracts outstanding relating to said premises and the building,” then in course of erection, and all “ moneys now due or to grow due on account of said contracts or either of them, and all incumbrances of whatsoever nature and kind so ever now a lien upon said premises or any part thereof,’’ the land becomes charged with an equitable lion in favor of mechanics and material-men for their claims; and this lien attaches to the surplus moneys arising upon foreclosure of a mortgage upon the premises.</p> <p>4. The same.] It is immaterial that such claims arose upon contracts with the husband of the grantor for the erection of the building, so that the grantor was not liable for their payment; the consideration for the equitable liens so created is the transfer of the land.*</p> <p>5. The same.] But such clause in the deed covers only claims in existence at the time of the execution of the deed ; not those arising under contracts made after the transfer, notwithstanding its sweeping language.</p> <p>6. Priority of purchase money mortgage.] As between the claims so charged on the land and a purchase money mortgage, as they arise at the same time and are parts of the same transaction, neither is entitled to priority, at least as to the original parties and subsequent parties taking with actual notice of the facts.</p> <p>7. What is a purchase money mortgage.] Although a purchase money mortgage may be given to a person other than the grantor, yet this must be either when such third person has actually advanced money, or, at least, with the knowledge and by the direction of the grantor, in such manner that, the grantor authorizes and adopts the mortgage as part of the consideration.</p> <p>8. The same; effect of recital.] The presumption of the truth of a recital in a mortgage to a person other than the grantor that it is given to secure a part of the purchase money, is overcome and the mortgagee put to proof of the actual consider ation by evidence that the grantor did not know of the delivery or of the exist enco of the mortgage, that none was contemplated as part of the original transaction, and that the property was worth less than the incumbrances already on the property at the time of the conveyance.</p>

Action by Lizzie Sarles, the widow, and Alice G. Sarles an infant daughter of Leandcr Sarles, deceased, against Mary E. Sarles individually, and as a trustee under the will of said Lcander Sarles, and the other persons interested in said estate, for a construction of said will, and an accounting by the trustees. The facts and the nature of the questions involved are. fully stated in the opinion.

<p>8. Permanent receiver of corporation.; title.] The final or permanent receiver in the People’s action was vested only with such property as the corporation had at the time of its dissolution; and the property in question having been before determined to have passed under the foreclosure sale, it formed no part of the estate which came to the permanent receiver.</p> <p>10. The same; suits.]. Under the statutes in force in' 1875, a final receiver appointed in an action by the People for the dissolution of a corporation, was not required to consult the general creditors of the corporation in the prosecution, or defense of any action.</p>

<p>1. Appointment of receiver of rents and profits."] In an action to set asido a conveyance of land by a deed absolute in form against a subsequent grantee upon the ground that it was in fact a trust deed onty for the benefit of the grantor, a receiver of the rents and profits should not be appointed pending the action.</p> <p>2. The same; presumptions in favor of parties in possession.] The presumptions aro all in favor of the party in possession, and ho ought not to be deprived of the fruits of that possession until upon trial it has been adjudged that bis title is invalid.</p>

<p>1. Receiver in forecl/sure ; rents accrued before appointment.] It seems, that a receiver of the rents and profits of the mortgaged promises "appointed in an action of foreclosure, cannot reach rents accrued and in arrear prior to the commencement of the suit.</p> <p>2. The same.] Where grave questions are involved as to whether the relation between the owner of the foe, and the occupants is that of landlord and tenant, and as to the measure of the liability of the occupants, they should not bo determined on motion for payment of back rents to the receiver, but in an action in which all parties interested can be heard.</p>

<p>1. Receiver of corporation ; actions l>y or against.] Where, after action brought by a creditor of a corporation against a trustee to reach the proceeds of laud alleged to have been obtained by him from the corporation in fraud of its creditors, a receiver of the corporation is appointed in the People’s action for dissolution, and under authority of the court the receiver brings an action to set aside the transfer of the land by the corporation to its trustee, the court will not thereafter permit the corporation and its receiver to be brought in as parties defendant in the prior action, and thus compel the receiver to submit his rights as such to judgment in an action which may be in conflict with the suit he has instituted under order of court.</p>

Motion to limit the term of lessees under a lease given' by a receiver in partition under an order of court. The material facts are stated in the opinion

<p>1. Attachment of bonds; possession of officer.] To constitute a valid . levy of attachment upon railway bosds of the debtor in possession of a depositary, it is essential that they should be taken into the officer’s actual custody ; but this requirement is satisfied where, after the depositary’s refusal to surrender possession and.a threat by the officer to use force to obtain possession, the bonds are exposed to the view and taken into the possession of the sheriff, and thereupon returned to the depositary to be held as the custodian thereof for the officer.*</p>

Trial by the court. James J. Nealis^ as receiver of the co-partnership assets The firm of Adler and Schoenhof on October 10, ISStq were .indebted to defendant, Herman Adler, upon a firm .note for $47.78161, then overdue, and at his request, Henry Adler on that day gave him three notes for. $1633.23 each, ■maturing .respectively in two, three- and four days after 'date, and:took up the old note.

Motion to vacate order granting plaintiff leave to sue i/n forma pauperis. The order in question was granted upon petition, under N. Y. Code Civ.

Trial by the court without a jury. Charles A. O’Neill, as. the assignee of Patrick Haley for benefit of creditors, brought this action against Samuel Nagle to recover the sum of §616.55, the amount of sales of goods on commission made by the defendant for Haley, less his commissions.

Trial by the court without a jury. Richard Walter brought this action against Henry P. De Graaf, and Ida M. Ingersoil, to recover the deposit paid by the plaintiff and his damages, by reason of De Graaf’s breach of a contract of sale of certain premises in the city of New York. The facts found'by tiie court were substantially as follows : On February 14, 1887, plaintiff purchased the premises in question at public auction.

I. May, 1887. Application by Talbot W. Chambers, one of .the executors of the will of John F. Delaplaine, deceased, for an order directing that all the securities and other personal property belonging to the estate of said decedent and then in the custody or under the control of James Cruikshank, the respondent, another executor .thereof, or thereafter to come into the possession of said executors, be deposited in .the joint custody of the petitioner and respondent as. such…

I Appeal by owners of land, sought to be condemned for a railway, from an order granting a petition for the appointment of commissioners. The Rochester, Hornellsville & Lackawanna Railroad Co., a railroad corporation organized under the laws of this State, and seeking to acquire lands in Monroe county, for the purpose of constructing its proposed road, presented a petition to the supreme court, praying for the appointment of commissioners of appraisal.

Edward C. Woodruff filed his bill against the Dubuque & Sioux City Railroad Company, an Iowa corporation, and Droxel, Morgan & Co., bankers in the city of New York, upon the following grounds : The defendant railroad company is a corporation of Iowa, and its railroad is situated in that State.

Plaintiff filed his bill against the N. Y., Lake Erie & Western Railroad Company, and Hugh J. Jewett and others, under the following circumstances : A majority of the stockholders on the Cincinnati, Hamilton and Dayton Railroad Company, had agreed among themselves to deposit their certificates in the hands of -throe trustees, who were to issue negotiable certificates therefor, and who were to register the stock in the name of the defendant Jewett, who was at that time the…

<p>1. Corporations ; proxy trust; pooling stoclc valid.] It seems that a contract by stockholders, transferring to others the power to vote on their stock without the beneficial ownership thereof, is not void as against public policy.</p> <p>2. The same; revocation.] Such a contract however is, in legal effect a mere proxy ; and if not made on any other consideration than the mutuality of the concurrent act of the stockholders, is revocable by any of the stockholders, as to his own stock, at any time.</p> <p>3. Remedy.] An injunction pendente lite against the trustees voting on the plaintiff’s stock should be granted, on such facts, on motion ; but a mandatory order for its re-transfer to him should not be made before full hearing.</p>

This caso was heard with the case of Griffith v. Jewett, above stated, and differed from it only in the fact that the plaintiff sued as the owner of stock which was not included in the trust agreement.

Hearing, on exceptions to master’s report of the facts and Ms conclusions of law, after hearing on bill, answer, and evidence. Held: That a contract depriving the owner of stock of the right to vote on it is void as against public policy. Citing State of Louisiana v. Am. Cotton Oil Trust (1 Bailw. & Gorp. L. J. 500, stated above, see p. 450) and Greenhood on Pub.

<p>1. Mandamus to telephone company to allow me of instrument.] A telephone company, incorporated for the purpose of transmitting) messages by telephone, is a public servant and cannot so use the invention as to withhold from one citizen the use which it accords to another ; and it may be compelled by mandamus to place one of its telephones in the relator’s office for use, on compliance with its usual terms and reasonable regulations.*</p> <p>2. Telephone company; transmission of messages for competitor.] Neither the general rules of law, nor the statute (L. 1848, c. 265, § 11; 2 R. S. 7th ed. 1719), require a telephone company to receive and transmit over its own line messages taken by a rival company for transmission in the course of its regular business.</p> <p>3. The same; reasonable regulations.] A regulation, therefore, of a telephone company, by which a subscriber is required as a condition of having an instrument for use, to agree that the instrument shall not be used for any part of the work of calling, transmitting or delivering any message, in respect of which any toll has been or is to be paid to any party other than the telephone company, is reasonable and valid.</p> <p>4. The same; use of telephone in other business.] A general messenger business, although carried on by a telephone company at its regular offices, being a distinct business, and not essential to the conduct of its system of transmitting messages by telephone, for which purpose it was incorporiitcd, is not entitled to protection from rivals desiring to use its telephones for their own messenger business; and a regulation, therefore, which prohibits a subscriber from using the telephone for calling messengers except from its own offices, is unreasonable and void.</p>