Volume 43 — New York Supplement

<p>1. Cancellation op Instruments—False Representations.</p> <p>A deed is not procured by fraud where the grantee wrote to the grantor that certain land owned by her had been sold for taxes, that she had been thereby divested of title, and that he wished to purchase a quit claim for the purpose of contesting the tax sales,—all of which was true, except the legal conclusion that grantor was divested of title by the tax sale,—and grantor, before giving the deed, had a full investigation of the title made by her attorney.</p> <p>& Trial—In Equity—Nonprejudicial Error.</p> <p>In actions in equity, error in admitting testimony will be disregarded, if the decision is just, and adequately supported by legal evidence.</p>

<p>1. Corporations—Right to Inspect Books—Demand.</p> <p>A demand by a stockholder for all the books of a corporation for the purpose of inspecting them is not such a demand for the “stock book” required by law to be kept “open daily for inspection” (Laws 1892, c. 688, § 29) as will support an action for the penalty therein provided for a refusal to exhibit the stock books or allow the books to be inspected.</p> <p>2. Same—Demand—When to be Made.</p> <p>The only demand which can be made the basis of an action under Laws 1892, c. 688, § 29, subjecting to a penalty any officer of a corporation who refuses a stockholder an inspection of the company’s books, is a demand made during business hours, and at the office of the corporation where the books are kept.</p> <p>8 Same—Construction of Statutes—Penalty.</p> <p>1 Rev. St. p. 601, § 1 (Laws 1825, p. 448), giving stockholders the right to inspect the books of the corporation for 30 days before the election of directors, was applicable to a mutual building and loan association organized under Laws 1851, c. 122, which contained no provision to that effect; and hence, when that provision was repealed, and Laws 1890, c. 564 (Stock Corporation Law), was substituted therefor, the officers of such corporation became liable to a penalty under section 29 for any refusal to permit a stockholder to inspect its books at any time during business hours, since such association was a stock company.</p> <p>4. Same—Stock Books—Refusal to Exhibit.</p> <p>Corporation books in which were the names of owners of stock, the number of shares held by each, and the amount paid thereon, contain substantially the information required by Laws 1892, c. 688, § 29, to be kept in a “stock book”; and hence an officer having charge of the books is liable to the penalty prescribed by said section 29 for refusing to exhibit them to a stockholder, though the books may be called by a different name, and may not comply in detail with the requirements of the statute.</p> <p>6. Same—Membership—Certificate of Stock.</p> <p>It is no defense, to an action by a stockholder for a statutory penalty against an officer of a corporation for refusing him an inspection of the books of the company, that no certificate of stock had ever been issued to him, since a certificate is merely the evidence of title to stock.</p> <p>6. Same—Arrearage in Dues—Effect on Membership.</p> <p>A member of a building association does not, because he is in arrears of dues, and is not entitled to vote under the constitution of the association, lose his membership under Laws 1892, c. 687, § 3 (General Corporation Law), providing that the term “member of a corporation” shall include every person having a right to vote at a meeting for the election of directors, since the law does not state that the term “member" shall include no one except a person having a right to vote.</p> <p>7. Same—Penalty—The “Party Injured.”</p> <p>A denial of the right to a stockholder to inspect the books of the corporation is the injury contemplated in Laws 1892, c. 688, § 29, giving “the party injured” a right of action against the officer of the corporation who has the books in charge, and refuses such inspection.</p>

<p>1. Pleading—Complaint—Anticipating Plea of Statute of Limitations.</p> <p>A complaint in an action at law need not allege facts to avoid the statute of limitations, though it appears from the complaint that the action was not commenced within the time limited.</p> <p>2. Limitation of Actions—When Cause of Action Accrues.</p> <p>A cause of action for fraud in procuring a contract to marry accrues when the contract is made, not when the fraud is discovered.</p> <p>3. Same—Repetition of Fraud.</p> <p>Eepetition of the fraudulent representations by which a contract to marry was procured does not give a new cause of action, so as to interrupt the running of the statute of limitations against an action for the fraud.</p> <p>4. Same—Burden of Proof.</p> <p>The burden is on plaintiff to prove that the action is not barred by the statute of limitations, where the statute is pleaded by defendant, and it appears that the action was not commenced within the time limited.</p> <p>5. Same—Pleading.</p> <p>A plea that the action was not commenced within 10 years after the cause of action accrued sufficiently alleged that it is barred by the six-years statute.</p>

Application by Anthony Gross, as assignee „of James A. Striker, for a peremptory writ of mandamus to compel Ashbel P. Fitch, comptroller of the city of New Yórk, to refund to' relator an assessment paid by James A. Striker for the opening of Twelfth avenue. From an order granting the writ, the comptroller appeals. Reversed.

<p>Costs—Replevin—Value and Damages in Excess of $50.</p> <p>Under Code Civ. Proc. § 3228, subd. 2, providing that in replevin, if the value of the chattel recovered, “as fixed,” together with damages, is less than $50, the amount of plaintiff’s costs cannot exceed the amount of value and damages. The value of the chattel may be shown by affidavit, where the jury failed to fix it.</p> <p>Plaintiff commenced an action in replevin, and took the goods. The jury awarded possession to it, and fixed the damages at $25, but did not fix the value. Plaintiff presented a bill of costs for $115.91. Defendant objected to its taxation at that amount on the ground that under section 3228 of the Code, subd. 2, no more than $25 could be taxed. Plaintiff moved for a new taxation. Its motion was denied. On motion for reargument, which was granted, the justice reversed his former decision, and on the authority of Claflin v. Davidson, 53 N. Y. Super. Ct. 122, directed the clerk to retax on proof as to value in the form of affidavits. A retaxation was had, and plaintiff presented an affidavit that the value was $100, and the full bill of costs was taxed. This appeal is taken from the order directing a retaxation.</p>

Action by Richard M. Montgomery and another against Henry Knickerbacker for commissions alleged to be due for the sale of real estate. On the affidavit of defendant’s counsel, an order was granted for the examination of a witness before trial. Plaintiffs appeal. Reversed.

Action by the Breckenridge Company, Limited, against James D. Perkins and Francis Seaverns. Defendants moved to vacate a judgment for plaintiff entered on the report of a referee, and from an order denying such motion they appeal. Affirmed.

Transferred from the First department. Action by Bernard Feldman against Frederick J. McGraw and Michael Brennan. From a judgment entered on a verdict in favor of defendants, and from an order denying a new trial, plaintiff appeals. Affirmed.

Judicial settlement of the accounts of Mary C. Duffy as administratrix with the will annexed of Margaret Galway, deceased. The administratrix claimed an allowance from the estate for the keeping and care of the testatrix during her lifetime. Granted.

Action by Charles Prignitz against William M. McTiernan to recover treble damages for the malicious destruction of property. From a judgment in his own favor, entered on a decision of the trial judge, plaintiff appeals. Affirmed.

<p>False Pretenses—Presenting Claim against a County.</p> <p>The presentation to a board of county supervisors of a bill containing items which are correct, and properly chargeable against the county, but the prices for which are excessive, is not indictable under Pen. Code, § 672, making it a felony to present a false and fraudulent bill for audit, with intent to defraud.</p>

Action by Willis J. Benedict, as receiver of the property of William H. Eldridge, against said William H. Eldridge and others, to set aside a deed as in fraud of creditors. There was a judgment for plaintiff, and defendants appeal. Affirmed.