Volume 43 — New York State Reporter

<p>Vendor and purchaser—Deed—Defective acknowledgmet.</p> <p>The record of a deed in the chain of title did not contain in the acknowledgment thereof the usual statement that the persons executing it,. were known to the notary, but the deed was witnessed by the notary. In an action for specific performance of a contract of sale, it was shown that the original deed was lost, and the notary testified that he knew the parties who signed it, and that he saw them execute it. Held, that the defect was not such as rendered the land unmarketable, and that the possibility that the defect might lead to controversy was so remote that the purchaser should be required to complete.</p>

<p>Injunction—Usury.</p> <p>Defendant, who does business under the name of the Lincoln Loan & Gurantee Association, endorsed plaintiff's notes for $300, taking back a chattel mortgage to the association for $405 to secure the amount of the. notes and its fees for endorsing and guaranteeing them. In an action to restrain the foreclosure of the mortgage on the ground that the transaction was a mere device to cover usury, Held, that upon the facts in the case plaintiff was entitled to an injunction restraining foreclosure until the trial of the action.</p>

<p>Appeal from a judgment in favor of the plaintiff on the ver•dict of a j ury, and from the order denying a motion for a new trial.</p>

<p>Appeal from order of the supreme court, general term, first department, affirming order granting motion for a jury trial.</p>

<p>1. Insurance (fire)—Attachment.</p> <p>Until proofs of loss are filed nothing is due to the holder of a policy of fire insurance, and an attachment issued and served upon the company by a creditor of such policy before such time is ineffectual to create a lien on the claim.</p> <p>2. Same.</p> <p>A claim by a resident of this state against a domestic fire insurance company cannot be attached in a foreign state by service on an agent of the company in that state.</p>

<p>Motion for re-argument</p>

<p>Bes adjudicata—Fraud.</p> <p>Plaintiff recovered judgment by default in an action for royalties under an exclusive license of a patent. In a subsequent action for royalties, where the defense of fraud in procuring the agreement to pay such royalties was set up, Meld, that the former judgment was not conclusive on that question; that it was not litigated in the former action, as there was no issue before the court in that case.</p>

<p>1. Railboads—Elevated—Damages.</p> <p>In an action to restrain the operation of an elevated railroad, the case-was evidently tried by both sides upon the theory that the diminished rental value was the measure of past damages. The court refused to find as requested, “That since the time the said elevated railroad was constructed, and for many years prior thereto, the said building had been occupied by the plaintiff for the purpose of his business as a dealer in flour ” Held, that the request did not call attention to the rule of damages, that, the recovery should be limited to the diminished value of the premises for the purpose for which they had been used since the road was constructed, in such a way as to bring the question up on this appeal.</p> <p>2. Same—Injunction.</p> <p>Plaintiff, before the action was begun, requested defendants to condemns the easement. After the action was begun proceedings were noticed and commissioners were appointed to condemn the easement after the trial of this action was begun. After the trial; the parties by stipulation asked the court to find the value of the property taken so as to avoid an injunction. Held, that the court did not err in refusing to direct that an injunction should only become effective in case the defendants failed to acquire the easements by condemnation.</p> <p>3. Same—Judgment—Mortgages.</p> <p>Where there are mortgages on the premises injured, the judgment should require the owners to tender with their deed of release of the rights and easements a discharge of the mortgage from the rights and easements so to be conveyed.</p>

<p>Appeal from an order of the general term of the court of common pleas of the city and county of Hew York which reversed an order of the special term denying the application for dissolution, and granted the motion to dissolve.</p> <p>This was a special proceeding for the dissolution of a corporation, organized August 21, 1883, pursuant to chapter. 228 of the Laws of 1877, under the corporate name of the “ Importers &. Grocers’ Exchange of Hew York,” to continue for the period of fifty years. The proceeding was initiated by the petition of a majority of the trustees and the practice pursued, as to which no question is raised, was that prescribed by §§ 2419 to 2432 of the Code of Civil Procedure. From the report of the referee, to-whom it was referred to take the proofs and determine the facts,, it appeared that the object of the corporation as set forth in its charter certificate was “ to foster trade and commerce in groceries and East Indian and South American products; to protect such trade from unjust and unlawful exactions; to reform abuses in said trade and diffuse accurate and reliable information among its members; to produce uniformity and certainty in the customs and usages of the trade in said merchandise; to settle differences between the members of said corporation arising out of the trade in said merchandise, and to promote a more enlarged and friendly-intercourse between merchants engaged in said trade and generally to increase the facilities for conducting the trade in groceries and East Indian and South American products.”</p> <p>The amount of the capital stock was $3,750, divided into fifteen shares of $250 each, one share being held, ex officio, by each of the fifteen trustees, and upon the expiration of his term of office passing under the by-laws to his successor. The members were elected by the trustees, and each one was required to pay an initiation fee of $250 until the number equalled 100 ; after that .$500 until there were 200, and after that $1,000. The certificates of membership are transferable, provided the transferee is approved by the committee on membership' and the governing •committee. There are now 220 certificates outstanding, held by 216 members. The Exchange began work in November, 1883, occupying commodious rooms, furnished with black boards, call ¡stands, and all the usual appliances for the convenient transaction of the business of an exchange. The annual rental was $7,000, .and the salary roll.nearly as much more. The attendance at first was large, and much business was done, chiefly in teas and sugars for future, delivery. Speculation in tea was so active that prices gradually rose from nineteen to thirty-four cents a pound, but the market became demoralized in consequence, failhres resulted, business ran down, the attendance fell away, and all efforts at resuscitation were in vain.</p> <p>From November, 1883, to December, 1884, inclusive, the transactions in tea amounted to more than 45,000,000 pounds; in sugar, to nearly 60,000 tons, besides about 40,000 barrels, and in hemp, to 900 bales. The decline began with the collapse •caused by speculation in March, 1884, and gradually continued until May 1, 1885, and since then there have been no transactions •on the Exchange. • In May, 1884, steps were taken to reduce •expenses, and in March, 1885, cheaper, though large and convenient rooms were occupied. In April, 1886, the Exchange removed to small and inconvenient rooms that rented for $450 a year, and in February, 1887, a part of these was surrendered, ■and since then the rent has been- $300 per annum, and the salary roll fifteen dollars per week. As early as June, 1885, a move was made to wind up its affairs. At the annual election in 1885 118 votes were cast,- and in 1886 only thirty-four. In April, 1887, the governing committee, composed of the officers and trustees, unanimously resolved to take the necessary legal steps for a dissolution and appointed a committee for that purpose.</p> <p>Nine out of the fifteen trustees verified the petition by which this proceeding was commenced and three .trustees served an answer. Thirteen members of the present governing committee and •one hundred and thirty-one holders of certificates of membership •either petitioned for a dissolution or testified on the trial that, in their opinion, it was for the best interest of the members to wind up the Exchange. The opposition is headed by two members •and one ex-member of the governing committee, and consists-entirely of those interested in the tea trade, but does not include all who"are thus engaged. Ten members .testified that they were, opposed to dissolution, because it furnished the following benefits to the tea merchants: Combined action in state and legislative matters ; reliable standards of values; uniform telegraphic and other-trade information; accurate monthly statements of teas received and delivered, showing the consumptive demand; machinery to-settle disputes as to packing, cooperage and the condition of teas; the establishment of regular warehouse charges and “ the ability to issue certificates of tea upon which money could be borrowed as collateral.” The referee found that such benefits accrued to the tea people from the organization of the Exchange, but that none of those benefits now exist, except the collection and publication of statistics of the amount of tea received and in warehouses.</p> <p>He also found that the Exchange has outlived its usefulness ; that no business has been done there for a long time past, and that business cannot be successfully conducted there; that the great, majority of all the members desire its dissolution, and that a trust fund, accumulated from the sale of certificates of membership and-amounting to $69,648.68, is lying idle, and the members desire to receive their respective shares thereof. There are no debts against the corporation, except a small amount for current expenses.</p> <p>The governing committee is elected by the members of the Exchange, and as a large majority desire a dissolution they elect a committee in favor of that course. In the spring of 1886 the-trustees prohibited calls of merchandise and refused to furnish standards of tea unless they were paid for by subscription, although without them business in tea cannot be successfully done-upon the Exchange. The main reason why sugar was not dealt in is because the sugar business was largely in the hands of the sugar refiners, who refuse to deal on the Exchange or to purchase sugar bought or sold there. The referee found expressly that it was for the interest of the objecting members, or of those engaged in the tea trade, that the corporation should not be dissolved, and by implication, that it was for the interest of all the others, many-more than half, that it should be dissolved.</p> <p>The special term denied the application and dismissed the proceeding upon the that ground the Code does not require a dissolution when it would be beneficial to a majority of the stockholders,, but injurious to a minority, 18 St Eep., 175. Upon appeal to the general term this order was reversed, the report of the referee-confirmed and a decree made, which after reciting that “ it appearing to the court for the reasons stated in the said report of the-referee, that it will be beneficial to the interests of the stockholders and members and not injurious to the public interests, if a dissolution is ordered,” dissolved the corporation,' appointed a receiver of all its property and directed a distribution of the net proceeds among the members in proportion to the amounts paid by them respectively for their certificates of membership. 28 SL Eep., 416.</p>

<p>Highways—Supervisors—Certiorari.</p> <p>The action of a board of supervisors in passing an act for the improvement of roads in a town is not reviewable on certiorari.</p>

<p>Appeal from order sustaining demurrer to answer.</p>

<p>Executors and administrators—Costs.</p> <p>In this proceeding to compel payment of income of a trust fund to the • beneficiaries, it not being conceded that there was to be any accumulation of income, Held, that the direction of the surrogate that the costs be paid from the principal of the trust fund should not be disturbed.</p>

<p>Motion for re-argument.</p>

<p>Motion for reargument.</p>

<p>Will—Perpetuities—Bequest to corporations.</p> <p>Testator by his will gave sums of money in trust to the trustees of certain religious societies for the support of the pastors in charge; to the managers of the Home for the Friendless, the income to he applied to the benefit of the institution, and to the De Veaux College, the interest to be applied to the education of some worthy boy or boys, expressing a preference for certain classes of boys, but providing that the beneficiaries might be received in the same order and under the same conditions as other beneficiaries were received under the will of Judge De Veaux. Held, that the gifts were to the corporations and institution, and were for one or more of the purposes of the incorporation of the institution to which it was made, and hence they were not repugnant to the statute of perpetuities.</p>

<p>Appeal from a judgment entered on the report of a referee.</p>

<p>Appeal from a judgment entered on report of a referee, on February.il, 1891, which awards plaintiff $1,457, with interest from January 31, 1891, to date of judgment, for past damages sustained by her on account of the operation and maintenance of defendants’ elevated railroad in front of premises Ho. 934 Sixth avenue, besides $180.18, her costs, and $150 granted as an extra allowance. The judgment further enjoins the defendants from maintaining or using their elevated railroad structure, or operating their railroad thereon, in front of said premises Ho. 924 Sixth avenue, except on the payment to plaintiff of $2,350 as the price of so much of her property in the street as has been taken by defendants.</p>

<p>Appeal from judgment entered on the report of a referee.</p>

<p>Appeal from judgment in favor of plaintiffs, entered on the report of a •referee.</p>

<p>Appeal from a judgment, entered on the report of a referee, in favor of the plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiffs, entered on the report of a. referee.</p>