Volume 70 — New York Miscellaneous Reports

<p>Mandamus — General rules —- Necessity of existence of clear right or title; Who may he relator.</p> <p>One who applies for a writ of mandamus must show himself legally and equitably entitled to some right properly the subject of the writ, and that such right is legally demandable from the respondent.</p> <p>Where a village treasurer, having hy pretext secured possession of a village certificate of indebtedness given to him by the village cleric for the purpose of making a copy thereof, refuses to either make delivery of the certificate to the purchaser- or return it to the village clerk, either he or the purchaser has an adequate remedy against the treasurer who, in withholding the certificate, acts only as an. individual.</p> <p>The president of the village, upon whom no duty rests to intervene to procure the restoration of the certificate to the village clerk or its delivery to the purchaser, is not entitled to a writ of mandamus requiring the treasurer to deliver the certificate to the purchaser and to accept from him the amount of the purchase price.</p>

<p>Mandamus to compel payment of a claim.</p>

Motion in above-entitled proceeding to vacate a subpoena requiring John M. Phillips to testify before Samuel H. Ordway, Esq., as commissioner, appointed by the Governor to investigate charges against the borough president of the borough of Queens.

<p>Process — Defects and amendments — Amendment — Name of party.</p> <p>Under section 723 of the Code of Civil Procedure, relating to amendments by adding or striking out the name of a party or correcting a mistake in the name of a party, the court is without power to change the name of a plaintiff from “ The Concrete Publishing Company ” to that of “ The Concrete Age.”</p> <p>An amendment of a summons bringing in a new party defendant is of no validity until the amended summons is served upon such new party; and as to him the action is deemed to have been commenced on the day of such service.</p>

<p>Discovery and inspection — Inspection of books, papers and premises — Eight to remedy — Examination of persons and property — Corpse of plaintiff’s intestate.</p> <p>In an action by the administratrix of a deceased person' to recover damages for negligently causing his death, the dead body of the plaintiff’s intestate is not within section 803 of the Code of Civil Procedure, as amended by chapter 173 of the Laws of 1909, which provides for making discovery of any “article or property” in the possession or under the control of a party.</p>

<p>Attorney and client — The relation with the client — Compensation — In general — Contracts for compensation — Fixing counsel fees by agreement — Contingent fees — Judicial control — How exercised.</p> <p>Trusts — The beneficiary, his estate, rights and interests — Alienability of interest — Income payable to persons entitled to next eventual estate after death of beneficiary.</p> <p>Where, upon the death of the life beneficiary under a will constituting a trust, the income becomes payable by force of section 63 of the Real Property Law and section 11 of the Personal Property Law to the persons entitled to the next eventual estate, such income is not inalienable under sections 103 and 15, respectively, of the same acts.</p> <p>A contingent fee, amounting to a very large sum, resting on an agreement between a client and one already her confidential adviser and -friend as well as counsel, in a case where she was not fully advised how trifling was the risk of an adverse decision, nor that a previous decision 'of the Appellate Division favorable to her contention had been rendered by the unanimous opinion of all the judges, though there was no fraud in the transaction hut the attorney exaggerated the risk in his own mind, should be reduced' to a reasonable amount, having regard to the fact that the fee was contingent and the amount of labor required might have been much greater than it proved to be, hut under such circumstances not to a mere quantum■ meruit, and against such amount should be charged the taxable costs the attorney has collected.</p>

<p>Banking — Deposits — Actions by and against depositors — Demand as condition precedent.</p> <p>In an action by a depositor to recover funds deposited in a bank it is incumbent upon the plaintiff to allege and prove a demand</p> <p>, for repayment.</p>

<p>Action to determine claim to real estate:</p>

<p>Action to determine title to certain lands facing the ocean.</p>

<p>Action for a separation.</p>

<p>Action to foreclose mortgage.</p>

<p>Ceetioeabi by relator to review act of defendants assessing special franchise tax.</p>

<p>Eminent domain — Condemnation proceedings — Costs.</p> <p>In condemnation proceedings brought in pursuance of chapter 146 of the Laws of 1909 for the acquisition of a toll bridge, the owner, although not entitled to costs under section 3372 of the - Code of Civil Procedure because under legal disability to convey title to the property acquired, is, nevertheless1, entitled to costs under section 3240 of the Code at the rates allowed to the defendant for similar services in an action brought in -the Supreme Court, including the costs before and after notice of trial, and a trial fee; but no extra allowance of costs is permissible.</p>

<p>Bridges — Discontinuance — Procedure — Irregularities —Waiver.</p> <p>Highways: Creation, requisites and incidents — Power to establish by dedication — Establishment of highway once discontinued: Aban-</p> <p>donment and discontinuance — Abandonment — What amounts to abandonment; Proceedings to discontinue: Dead officers — Powers conferred upon commissioners of two towns.</p> <p>A statute authorizing the commissioners of highways of certain towns to discontinue a bridge or highway existing at the time of its passage imist be construed as intending that in closing the same the procedure prescribed by the General Highway Law should be followed, including written application, summoning of freeholders and a finding that the old road has become unnecessary, after notice to persons living thereon, and compensation to persons injured.</p> <p>Where power to discontinue a highway is given to the commissioners of highways of two towns, the commissioners of one of the towns only cannot legally effect the discontinuance.</p> <p>Temporary interruptions by reason of the weakness or the destruction of a bridge, though covering a considerable space of time, do not operate as an abandonment of it ■ as a public way, since, being once a highway, it does not cease to be such until discontinued by proper authority.</p> <p>A highway, though legally discontinued in 1873, but thereafter used continuously and without interruption although for a period of less than twenty years, may again acquire the character of a highway where acts of the highway authorities are shown which amount to an acceptance.</p> <p>Where notice is given by the supervisor instead of the town clerk, as specified in section 252-255 of the Highway Law, and the town receiving the notice answers it without objecting to the sufficiency of the notice, and no objection is raised thereto upon a motion pursuant to section 25G of the Highway Law, the irregularity will be deemed waived.</p>

<p>Street railways — Street railway companies, their franchises and right to use of streets — Franchise arid right to use streets — Conditions imposed by municipality — Right to impose conditions.</p> <p>Under section 21 of the Railroad Law a city may refuse to assent to the construction of a railroad in its streets and may, therefore, impose any conditions it thinks proper as conditions precedent to the giving of its assent; and, if the city attaches conditions which the company deems unreasonable, the only remedy of the latter is to refuse to accept the assent.</p>

<p>Arbitration and award — Submission — Revocation — Time to revoke — Foreign arbitrations — Rule of foreign State.</p> <p>Although at- common law a submission to arbitration is revocable at any time before the award is actually made, a statutory provision of the State of Virginia that an arbitration agreement or submission shall not be revocable without leave of the court is not contrary to the public policy of this State.</p>

<p>Eminent domain—What constitutes taking of property so as to entitle to compensation — Interference with rights of riparian owners. Navigable waters—Access and lands—Wharves and landings.</p> <p>Where an incorporated association, acting under a franchise from the State, builds a wharf projecting from its own land into a harbor, and at the inshore end embanks its land against the sea, bulkheading it by crib-work from which to “ wharf out ” upon piling, a steamboat company having a ferry license may not build a wharf joining on to the association's crib-work or the bulkhead of its wharf so as to obtain access across it to the adjacent highway.</p> <p>The fact that the wharf of a private owner is near a shore road does not deprive the owner of the rights incident to private ownership, and such rights cannot be taken away even for a public use without making compensation therefor.</p>

<p>Action for injunction restraining the defendant from discharging sewage matter by means of its municipal sewer system into a stream known as Brimstone crock, which runs over the premises of the plaintiff, and for damages sustained thereby.</p>

<p>Chattel mortgages — Title and ownership—After default.</p> <p>Execution against property — Property subject to execution — Interest of chattel mortgagee.</p> <p>Fraudulent conveyances — Remedies of creditors and practice relating to attacks upon conveyances — In general — Power of execution creditor to disregard conveyance and sell on his execution.</p> <p>Upon default of the mortgagor of chattels, the absolute title thereto at once vests in the holder of the mortgage and the mortgaged property is subject to levy and sale under an execution against him.</p> <p>In such a ease, where the judgment debtor by a foreclosure of his mortgage and a sale of the mortgaged property is divested of the title thereto, the judgment creditor who claims that the proceedings by which the judgment debtor was deprived of title wero fraudulent as against creditors may test their validity by levying upon and selling the property; and he will not be. enjoined from proceeding in that manner at the suit of the purchaser upon the foreclosure sale, or his assigns.</p>

<p>Action for an injunction.</p>

<p>Civil rights — Names of living persons — Use for purposes of trade — Authorized use — Names of authors.</p> <p>Trade marks and trade names —What may he appropriated — Names of persons.</p> <p>The right to publish certain books with the non de plume of the author carries with it the right to state either upon the title page or otherwise the author’s true name, and such use of his name does not come within the prohibition of section 50 of the Civil, Rights Law (Consol. Laws, chap. 6) making the unauthorized use of the name of a living person for purposes of trade a misdemeanor ,• and, in an action to restrain the publication and the sale of said books .by said book publishers, defendants are entitled to judgment.</p>

<p>Former adjudication—Adjudications operative as bar or as conclusive evidence — In general — Interlocutory decrees or orders as res adjudicata — Denial of motion for judgment on pleadings.</p> <p>Where, upon the trial of a demurrer to a complaint for libel on the ground that it fails to state facts sufficient to constitute a cause of action, it appears that another justice, upon a motion by the plaintiff for judgment upon the same pleadings, made an order denying the motion upon the ground that the complaint was legally insufficient, but did not dismiss it, said order binds the court upon the hearing of the demurrer, and the demurrer must be sustained, with leave to amend the complaint on payment of costs.</p>

Action to .annul a marriage on the ground that plaintiff, ■at the time of the marriage, was under the age of legal consent.

<p>Municipal corporations: Contracts — Contracts made without public letting — Under Greater Mew York charter— Rights of parties: Actions by and against city — Answer in action by city.</p> <p>Pleading — Answer or plea — Denial and traverses — Denial of knowledge or information — Of facts presumptively within defendant’s knowledge.</p> <p>■ A contract for the performance of work made by a department of the city of New York without public letting creates an obligation upon the part of the city to pay quantum meruit, and the specification of a price in such a contract can only be effective as a maximum limitation and raises no presumption in favor of • the contractor as to the value of his services.</p> <p>In such a case, the contractor after the lapse of thirty days from the time of filing his claim with the comptroller may maintain an action thereon against the city, though the auditor may not have acted upon the claim.</p> <p>In an action upon such a claim the city need not plead a decision of the auditor adverse to the claim but may interpose a general denial and object at the trial to plaintiff’s proof thereof.</p> <p>Whether an answer may be held upon the trial to raise no issue because it merely denies knowledge or information sufficient to form a belief as to allegations which relate to matters that are presumed to be known to the defendant, quaere.</p>

<p>Action for damages for personal injuries.</p>

<p>Action against the indorser of a promissory note.</p>

<p>Action for partition.</p>

<p>Wills — Interpretation and construction: Terms defining the nature and quality of estates or interests — Future interests and vesting possession and enjoyment — Gift of remainder on death of life tenant to children and to heirs of deceased child: Terms defining quantum or duration of estates or interests — Rules and implications — Life estate implied from devise of remainder.</p> <p>Where a testator devised his real property to his wife in trust for his children named in his will, to hold and manage the same, and at her death the same to go to said children or the survivors theireof, and provides that “ both the said real estate and the said personal property remaining at her death to be divided to my above mentioned children or the survivor thereof in equal proportions, share and share' alike,” held, that the testator intended (1) that his widow should have the possession and management of both real and personal property for the support of herself and children and (2) that at her death the real estate and residue of the personal property should be possessed and owned by those of his children who should be living at the time of his death; and that upon the testator’s death his surviving children took a vested interest therein.</p>

<p>Action for the construction of a will.</p>

Appeal by the defendant from a judgment of -seventeen dollars and eighty-two cents, entered February 25, 1910, by Daniel Holbrook, justice of the peace of Port Jervis, N. Y. The action was brought to recover the wages of one Louis Bennett, an employee of the defendant, earned by him during the month of December, 1909.

<p>Fraudulent conveyance — Change of possession: Effect of failure to change possession: Sufficiency of change of possession.</p> <p>Where the proprietor of a saloon, two days before the recovery of a judgment against him, sells the furniture and fixtures of the saloon, but there is no immediate delivery followed by actual and continued change of possession, the sign on the door of the saloon is not changed, the goods are left in the possession of the seller and no claim by the buyer appears that, the business is-his nor any evidence of the good faith and honest intention of the parties, the buyer may not recover against the sheriff for the sale of the goods under an execution issued upon such judgment.</p>

<p>Constitutional law — Obligation of contracts and vested rights — Public officers.</p> <p>Justices of the peace — The office — Nature of office.</p> <p>There is a broad distinction between the office of justice of the peace of one of the towns of the State and the office of a justice of the peace of a city or village; the office of town justice being a constitutional office, while the office of justice of a city or village is created by act of the Legislature and may be abolished by like act.</p> <p>The office of justice of the peace for the city of Ithaca, created by chapter 429 of tile Laws of 1892, was abolished by the revised charter of that city, constituting chapter 503 of tile Laws of 1908; and acts of the justices of the peace of the city of Ithaca after the latter date, save those within the exception of the latter act, are absolutely void.</p>

<p>Grand jury — Presence of Deputy Attorney-General.</p> <p>Indictment — Finding and filing and formal requisites — Interference or presence of prosecuting attorney in deliberations of grand jury. States — Governmental functions — Powers of officers — Attorney-General.</p> <p>Although the Governor properly required the Attorney-General to manage and conduct in person or by one of his deputies any proceedings before the grand jury of Queens county relating to any criminal charge arising, growing out of or based upon "any purchase o-f land by the city for Kissena park, where the grand jury, under the management and conduct of the Deputy Attorney-General, found an indictment signed by the Attorney-General under section 810 of the Penal Law and the indictment contains no allegation in words or by fair legal inference that the defendant was in any way connected with the purchase of land for Kissena park or had undertaken to do any act which could be construed as an act arising, growing out of or based upon the purchase of the land, such an indictment is without the scope of the investigation and should be set aside.</p>

<p>Demurrers to indictments.</p>

<p>Motion to dismiss indictments.</p>

<p>Demurrer to indictment.</p>

<p>Health — Health boards and sanitary officers — Expenses of administration.</p> <p>States — Claims: Liability of State in general: State Court of Claims — Effect of statute authorizing hearing and determination of claim.</p> <p>Under sections 24 and 30 of the Public Health Law it is the legal duty of a local municipal board of health to report to the State Board of Health any case of smallpox within the municipality, to guard against and prevent the introduction of any infectious disease, to enforce the isolation of all persons infected with or exposed to it and to provide suitable places for the quarantine, care and treatment of such persons; an'd the expenses so incurred by the local board of health are a charge upon the municipality.</p> <p>There being no provision in said statute for the reimbursement by the State of individuals or a locality for services or expenses incurred even under the direction of the State Board of Health, an enabling act which confers upon the Court of Claims jurisdiction to hear, audit- and determine a claim for moneys alleged to have been advanced and expended and to make an award and., render judgment therefor against the State in favor of the city for the sum actually expended and disbursed by it and which . further provides that no award shall be made or judgment rendered against the State unless the facts proved shall make out a case against the' State creates no liability for the amount expended in, enforcing the quarantine.</p> <p>Where the city of Geneva in enforcing a quarantine directed by the State Board of Health removed certain members of a traveling opera troupe, suffering from smallpox and who were about to enter the city, to an unused steamer which was converted into a hospital ship and anchored in Seneca lake where they were cared for until all traces of the disease disappeared and further spread of the contagion was stopped, a claim against the State for the expenses incurred 'by the city in the premises must be dismissed, .as it did nothing which it was not required by law to do and no relief could be had under an enabling act which was simply a submission to the Court of Claims of the merits of the case.</p>

<p>Appeal by the plaintiff from an. order of the Municipal Oourt of the city of New York, borough of Manhattan, sec- . ond district.</p>

<p>Municipal Courts — Procedure — Execution — Against the person — Nature of action as determining right — Nature of action, how determined.</p> <p>Where, in an action brought in the Municipal Court of the city of New York, the pleadings are oral, resort must be had to the testimony rather than to the exact language of the complaint to determine the nature of the action.</p> <p>In such case, though the complaint was “ conversion ” but the testimony showed merely a breach of contract, the action will be deemed an action on contract and a judgment in contract will be sustained.</p>

<p>Appeal by the defendant from an interlocutory judgment of the Municipal Court of the city of New York, borough of' Manhattan, second district.</p>

Appeal by the defendant Lyttle from an order of the Municipal Court of the city of New York, borough of the Bronx, second district, defendant also bringing up for review the judgment rendered in favor of plaintiff in said action.

<p>Appeal 'by the plaintiffs from orders and judgment of the Municipal 'Court of the city of New York, borough of Manhattan, second district.</p>

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the plaintiff upon a trial had before the court without a jury.

<p>Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint.</p>

Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, 'borough of Manhattan, first district, in favor of defendant, dismissing the complaint.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, dismissing the complaint.

Appeal by the defendant from a judgment of the City Court of the city of Mew York entered in favor of the plaintiff upon the'verdict of a jury and from an order denying a motion for a new trial.

<p>Appeal by the defendant from a judgment of the Municipal Court of the city of Yew York, borough of Manhattan, fifth district, in favor of the plaintiff.</p>

<p>Insurance: Construction and operation of contract — Construction in favor of insured: Actions on policies; Provisions in policy requiring action within specified time—After termination of disability; Provision in policy forbidding action until certain time—■ Three months after filing final proof of loss.</p> <p>In construing-a policy of insurance, if there be doubt, ambiguity or uncertainty, the policy will be construed against the insurer and in favor of the assured.</p> <p>Under a provision that legal proceedings shall not he brought within three months from the date of the filing of the final proof of loss in a policy providing for a weekly indemnity in case of disability, the words “ final proof ” do not mean proof made after the expiration of the total period of disability; hut there may be a final proof at the expiration of each week.</p> <p>Under a provision in the policy that legal proceedings cannot he brought after six months from the termination of the disability, the six months’ period does not begin to run from the expiration of a period from the commencement of the policy equal to the limited period for which the insurer agrees to pay weekly indemnity, but from the expiration of the entire period of the disability of the assured.</p>

<p>Appeal hy the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of the plaintiff, rendered after a trial hy the court without a jury.</p>

Appeal by the defendants from a judgment of the City Court of the city of blew York, entered in favor of the plaintiff, after a trial before the court and a jury, and from an order denying defendants’ motion for a new trial.

a judgment of the Municipal 'Court of the city of New York, borough of Manhattan, first district, in favor of the defendant, entered upon a trial by the court without a jury.

Appeal by defendant from a judgment of the City Court of the city of New York in favor of plaintiff, bringing up for review an intermediate order directing such judgment.

<p>Eeview by certiorari of determination of defendants of value of special franchise of relator for taxation.</p>

'Certiorari proceedings to review the action of the State Water Supply Commission in including lands of the relator in the improvement district upon which to assess the cost of the proposed improvement of Canaseraga creek and its tributaries in the county of Livingston.

<p>Application for the approval of a certificate of incorporation.</p>

Motion to tax the fees of commissioners of estimate and ■assessment and the costs and expenses of the city of New York in a street opening proceeding.

<p>Suspension of power of alienation — Effect of separability of estates — Separate trusts for more than two lives.</p> <p>Where a testator devised a house and lot to his daughter for life “ she not to sell or transfer it to any person,” and devised the same after her death to her two daughters “upon the same condition of their mother for their use and living,” each to share alike “ and it to revert to their heirs after their death,” held, that the two granddaughters took as tenants in common; that the share of each would go to her heirs on her death; that the heirs of each took a valid remainder subject to open and let in such other heirs, if any, as might be born prior to the termination of the two life estates, and that'there was no unlawful suspension of the power of alienation.</p> <p>And where the city of New York by the right of eminent domain took the real property for the purposes of its municipal water supply, and the value thereof was paid to a trust company subject to the order of the court as to its disposition, the court will not order the fund to be paid over to the granddaughters.</p>

<p>Eminent domain — Condemnation proceedings — Commissioners — Omission to take oath.</p> <p>Where, upon an application to confirm the decision and report of commissioners appointed under section 193 of the "Highway Law to determine the necessity of laying out a public highway and to assess the damages, it appears from the record that they did not, before entering upon the discharge of their duties, take the constitutional oath of office, as required by section 194 of the Highway Law, their proceedings are void; and an order will he granted vacating and setting aside their proceedings and report.</p>

<p>¡Summary proceedings.</p>

<p>Motion to continue preliminary injunction.</p>

<p>Motion for an injunction pendente lite. . .</p>

<p>Municipal corporations — Remedies of taxpayers and corporators — Action by taxpayer — Not maintainable against State officers.</p> <p>States—Actions—Against State—Against State officers.</p> <p>The statutes authorizing actions in equity bj taxpayers against public officers to prevent waste of public funds are not applicable to actions against State officials, boards or commissions.</p> <p>An individual, taxpayer who has no rights aside from those possessed by the. great mass of other taxpayers cannot maintain an action to enjoin a State Commission consisting of State officers appointed by the Governor to construct a prison plant, even if the commission has not been economical, has shown favoritism or has made an error in judgment or otherwise in adopting plans arid specifications and advertising for bids, and a motion for the continuance of an injunction granted pendente lite in a taxpayer’s action will be denied and the injunction vacated.</p>

Motiobt by the Builders’ Mortgage 'Company for an order directing the receiver of mortgaged premises to account for the rents collected by him, and to pay the same over to the moving party.

<p>Pleading—Amendments—Amendments by leave of court — Grounds for refusing leave.</p> <p>Receivers—Appointment, qualification and tenure of receivers — Proceedings for appointment and qualification — Form and sufficiency of moving papers — Specification of grounds as controlling.</p> <p>An application for the appointment of a receiver to preserve the assets of an existing association should not be granted on the inconsistent ground that the association has expired by limitation of time.</p> <p>Where an application has been made, in an action brought by a Stockholder in behalf of himself and all others similarly situated, to amend the complaint by setting up a cause of action of doubtful merit based on the expiration of the association by limitation, the existence of another stockholder's action based upon the latter ground which has been tried and submitted to the court but not decided is a sufficient reason for a denial of the application to amend.</p>

<p>Motion to compel purchaser at a judicial sale to complete his purchase.</p>

<p>Deeds — Reservations and exceptions — Repugnancy.</p> <p>Foreclosure of mortgages on lands — Foreclosure by action and sale — Parties — Proper defendants — Persons claiming under paramount title or lien.</p> <p>Judicial sales — Grounds for refusing to complete title or authorizing discharge from bid and proceedings — Title by adverse possession.</p> <p>Where a building covers the entire premises owned. by a man and also a small gore in the rear owned by his wife, the gore being part of the adjoining premises, also owned by the wife, and the building is sold upon a judgment in an action for the foreclosure of a mortgage thereon, the purchaser will not be released from his bid where it is shown that the building has been standing for more than twenty years and, during all that time, has covered the gore in question, access to which could only be obtained through the building.</p> <p>Where the wife, by a deed in which the husband joined, conveyed her adjoining property by a description including the gore, and the grantee executed a mortgage thereon to a third party, such third party is not a necessary party to an action to foreclose the mortgage on the husband’s building, since, when the mortgage on the wife’s property was executed, the building was held adversely to the mortgagor and his mortgage, so far as it purported to cover the gore, was void.</p> <p>And where the grantee of the husband’s building subsequently conveyed vit, expressly excepting the gore which was inseparable from the premises granted and inaccessible save through them, the exception was reppgnant to the grant and void."</p>

<p>Action by a testamentary trustee to have his accounts settled.</p>

<p>Judgment — Rendition—At particular stages of the action — Judgment on the pleadings — Motion for — Interlocutory judgment.</p> <p>The provisions of section 547 of the Code of Civil Procedure, relating to a motion for judgment upon the pleadings, are applicable to interlocutory judgments as well as to final judgments; and where it appears upon such a motion that the only material allegations' of the complaint that are denied raise issues properly determinable upon the accounting and not material to the question of plaintiff’s right to an interlocutory judgment therefor, but the admitted facts entitled plaintiff to such a judgment, his motion therefor should be granted.</p>

<p>Motion for judgment.</p>

<p>Sales — Delivery — Necessity and time for delivery: Necessity of delivery or tender in general: Time of delivery — Where time is specified in contract.</p> <p>Time — Exclusion of Sunday.</p> <p>Where one agrees, in consideration of another’s buying certain bonds, to purchase one-half of such bonds from him within a specified period, the latter cannot maintain an action on such agreement unless he makes tender of the bonds within the specified time.</p> <p>And where the period limited is a year the tender must be made within the year, though the last day is a public holiday.</p> <p>Sunday or a public holiday is not to he excluded from the reckoning of a period of time, if it be the last day of a period of years, under the provisions of section 20 of the General Construction Law, but only where the period is one of days, weeks or months.</p>

<p>Offer and acceptance — Sufficiency of acceptance — Implied acceptance —■ Performance of terms of offer.</p> <p>Specific performance — Subject matter of enforcible contracts — Contracts for personal services—Advertising contract.</p> <p>Where an instrument authorizes a publisher to insert an advertisement in a certain paper, for one year, for which the advertiser agrees to pay a certain price, and the instrument is signed by both parties and executed in duplicate and a copy thereof is given to each, and, in pursuance of the instrument, the publisher begins the publication of the advertisement and continues it for several months, and the advertiser pays therefor in accordance with his agreement, the instrument is a binding agreement between the parties and not void for lack of mutuality.</p> <p>Such a contract is not a contract for personal services, but, in a • proper case, specific performance thereof may be decreed.</p>

<p>• Motion for a new trial on the minutes.</p>

<p>Action for a separation.</p>

<p>Divorce — Foreign divorces and allowances — Foreign decree as bar to subsequent domestic action. .</p> <p>A divorce recognized as valid by the laws of Russia, granted by a Jewish rabbi in Russia to Russian subjects of the Jewish faith domiciled there, whose marriage was contracted in Russia, will be held valid here, after the parties have come to this country, though it was granted for cause that would be insufficient here.</p>

<p>Motion by plaintiff for the direction of a verdict, or trial by the court without a jury.</p>

<p>Mortgages — Payment — Release or satisfaction of mortgage — Payment— Extinguishment of mortgage.</p> <p>Subrogation — Voluntary payment.</p> <p>Where the purchasers of real property assume the payment of a mortgage thereon previously executed by their grantor, and afterward pay the holder tile balance due thereon, as against the grantor the mortgage must be considered as paid and he released from further liability thereon, though the grantees may by arrangement with the holder keep it alive as a lien upon the property for their own benefit by having it assigned to a third party to secure their indebtedness; but in such a ease the original mortgagor has no interest which would entitle him to be subrogated to the rights of the assignee upon his voluntary payment of the debt for which the assignee holds it.</p>

<p>New trial — Grounds — Verdict or findings contrary to law or evidence — Inadequate damages.</p> <p>Where, in an action to recover for moneys alleged to have been loaned to defendant, the latter interposes a counterclaim and on the trial the plaintiff introduces evidence in support of his claim amounting to a substantial sum, but the defendant offers no proof in support of his counterclaim, a verdict for the plaintiff for a nominal sum cannot be sustained.</p>

Action to foreclose the mechanics’ liens of various Italian laborers' who were employed on Good Roads Contract No. 456i The contract npon which the labor was performed by the plaintiffs and some of the defendant laborers was one to improve the Little Falls-East Creek road, from the city line of Little Falls easterly along the north side of the Mohawk river to the Montgomery county line at East Creek, a distance of five and thirty-nine hundredths miles in the town of Manheim,…

<p>Municipal corporations — Officers and agents — Officers and employees or agents other than mayor and common council—Compensation—• Compensation of employees not officers — Statutory rate — Waiver by. employee.</p> <p>Officers — Compensation — Waiver of right to compensation.</p> <p>The provisions of section 1091 of the Greater New York charter " that no female branch principal or female principal of an elementary school having not less than twelve classes shall receive less than twenty-five hundred dollars per annum after ten years of service in said schools” may be waived by a female branch principal; and one who voluntarily stipulates to accept less salary is bound by her stipulation.</p> <p>The principle, that the stipulation of a public officer to receive a lower compensation than that fixed by law is against public policy, does not apply to such a case.</p> <p>Semble, the intent of section 1091 of the Greater New York charter is that a female branch principal who has served ten years shall receive the minimum salary referred to without regard to the number of classes in her school.</p>

<p>Motion for the direction of a verdict in an action hy a sewer inspector of the city of New Rochelle to recover salary during the period of his suspension.</p>

<p>. Negligence — Actions: Evidence — Weight and sufficiency — Dangerous premises: Trial and review—Questions for jury — Contributory negligence of children; Contributory negligence of persons having custody or charge of children.</p> <p>Taking case from jury and nonsuit — Granting nonsuit after disagreement of jury.</p> <p>In an action by an administrator to recover damages for causing the death of his intestate, where the trial judge reserves his decision upon a motion for nonsuit and leaves to the jury certain questions as to defendant’s negligence and the contributory negligence of the decedent, and the jury fails to agree, the court may thereafter pass upon the motion for nonsuit.</p> <p>Whether .the act of the owner of a vacant, unfenced lot in a city, in building a fire there of paper and other inflammable debris on a windy day from which a child’s dress catches fire and she is burned to death, is negligence is a question for the jury.</p> <p>Whether the act of a child of six years of age in playing with a fire in a vacant lot constitutes contributory negligence is a question for the jury.</p> <p>Whether the act of the parents of the' child in permitting the child to go into the lot where they knew a fire was burning in the circumstances mentioned was negligence is a question for the jury.</p>

<p>Action for partition.</p>

<p>Action for partition.</p>

<p>Food—'Substances in imitation of butter — Action against boardinghouse keeper — Allegations and proof.</p> <p>In an action for a penalty for an alleged violation of section 40 of the Agricultural Law, which provides that any keeper or proprietor of any hotel, boarding-house or restaurant, saloon, lunch-counter or place of public entertainment who serves his guests any oleaginous substance as a substitute for butter shall post signs bearing the words “ Oleomargarine Used Here,” in the rooms where meals are served, the complaint must allege that oleomargarine was served by defendant to her guests as a substitute for butter.</p>

<p>Foreign corporations — Powers, duties, rights and liabilities — Eight to sue — Necessity for payment of license tax.</p> <p>Set-off and counterclaim — Claims which may be allowed as counterclaim or set-off in general — Demands against third person — Claim against assignor in action by assignee.</p> <p>A counterclaim in an action by the assignee of a contract must have existed against the assignor at the time of the assignment.</p> <p>In an action upon an assigned claim against defendant for brick delivered under a contract, defendant may not counterclaim damages for the assignor’s refusal a year after the assignment of said claim to make further delivery of brick under the contract; and the fact that the assignee’s claim 'had not matured or did not become payable until after defendant’s claim against plaintiff’s assignor did not change or modify tlie rule.</p> <p>■ It was no defense that the license tax on foreign corporations was not paid by plaintiff’s assignor as provided by section 181 of chapter 558 of the Laws of 1901, in the absence of allegation and proof that the State Comptroller ever fixed the amount of the tax. No tax being computed, no tax was due, and. the prohibitions of said chapter were not applicable.</p>

<p>Wills — Interpretation and construction: Expenses of the estate, charges, advances and payment of 'debts and legacies — Rules and implications—■ Implied charges on land — Power of sale and deficiency of personalty: Abatement — Fund created to pay annuities: Ademption, revocation and satisfaction — Ademption of specific legacies.</p> <p>Testatrix, who was an active, intelligent, experienced business woman familiar with details concerning her property and thoroughly conversant with pending litigation over her stepfather’s will, after directing the payment of debts and funeral expenses either out of her personal estate or out of the proceeds of the sale of her real property, gave to her executors in trust $76,000 to pay the income to one L for life and, upon his death, the principal to be paid to testatrix’s daughter, if living, or to her issue if she should be dead, and, in case she should die without issue before L, the fund to be paid to the beneficiaries under L’s will. All the decedent’s personal effects of every name and nature were bequeathed to her daughter.</p> <p>A subsequent clause of the will provided a trust in the executors of certain corporate stock, the income to be paid to said daughter until she reached her majority when the stock was to be transferred to her or to her issue in case of her death, and in case of her death without issue before arriving at majority the entire stock was given to L, and this stock was subsequently retired and the proceeds paid to the executor. The executors were given a discretionary power of sale of the stock in which event the proceeds were to be held in trust in accordance with the provisions of the trust of'the stock itself. The residuary estate was given to the executors in trust to invest and reinvest in such securities as they might deem best, whether authorized by law for the investment of trust funds or not, to pay the income to testatrix’s daughter for life and the principal to such person or persons as she might designate by will; if she made no such designation then to her issue; and, in case no issue survived and she made no such designation or appoint-, ment, the trustees were directed to pay $20,000 in small bequests and the balance to L. The trustees were given full power to sell, x lease or mortgage any real estate of the testatrix and if the daughter of testatrix so desired were directed to maintain certain real property for her benefit. In an action for the construction of the will which did not expressly charge the legacies upon the realty, it appeared that, after payment of debts, funeral expenses and probable expenses of administration, there would not be sufficient personalty not the subject of specific legacies to enable the executors to establish the trust fund if $75,000. Held:</p> <p>That in making the bequest provided for by testatrix’s will she manifestly relied upon the receipt at an early date from her stepfather’s estate of the property which is the subject of specific bequests contained in her will and of a sufficient sum of money to pay all bequests provided therein.</p> <p>That as the power of sale of the realty indicated the intent of testatrix that the realty might be used for a specific purpose inconsistent with the idea that it should be charged with the payment of legacies there was no intent that the legacy of $75,000 should be a charge on the realty.</p> <p>That the executors and trustees were not invested with power to sell any part of the real estate for the purpose of enabling them to establish the trust for $75,000.</p> <p>That it was not the intent of testatrix that her realty should be resorted to or used by the executors to pay the legacy of $75,000 to themselves as trustees, but her intent was that in the event of a deficiency of personalty said trust should abate to the extent of such deficiency after providing for the specific legacies of personal property and the payment of claims against decedent, funeral expenses, expenses of administration, commissions and all other charges in connection with the proper administration of the estate.</p> <p>That the amount paid to the executors upon the retirement of the preferred stock was a part of the stock trust and should be held by them as trustees as part of the principal of said fund.</p>

<p>Arrest on criminal charge — Examination and commitment for trial — Right to examination.</p> <p>Criminal law — Former adjudication and second jeopardy — Collusive prosecution.</p> <p>Criminal procedure: Acquisition, divestiture and transfer of jurisdiction — Transfer of prosecution to other courts: Arraignment and plea — Former acquittal or conviction: Waiver of errors — Waiver by failure or delay to object: Proceedings on review — Review — Affidavits and proofs outside of record; Decision on review—Grounds for reversal — Immaterial and technical errors.</p> <p>An appeal from a conviction in a Court of Special Sessions must be determined on the evidence and proceedings contained in the return and not on the uncorroborated eco parte affidavit on which the appeal was allowed.</p> <p>Where a defendant appears before a magistrate with counsel and, without objecting to the jurisdiction of the court, pleads to tl»e charge against him, the objection that the warrant which was served in another county was not indorsed by a magistrate of that county before service is waived, and the magistrate before whom defendant was arraigned has jurisdiction to proceed.</p> <p>The exclusive jurisdiction of a Court of Special Sessions, under section 5G of the Code of Criminal Procedure, to try a charge of assault in the third degree continues until an application has been made for a certificate of removal under sections 57 and 58 of said Code.</p> <p>A defendant charged before a justice with assault in the third degree is not entitled to a preliminary examination before trial.</p> <p>Where the defendant is on bail an adjournment of the case for a preliminary examination, though irregular, does not affect the merits and is waived by defendant’s failure to object to the jurisdiction of the court.</p> <p>On appeal from a conviction in a Court of Special Sessions, errors not affecting the merits and not raised by defendant’s affidavit on which his appeal was allowed cannot be considered.</p> <p>A plea of former conviction must give the date, place and the . name of the offense.</p> <p>A former conviction of assault to he available as a defense must be valid; and, if procured by a fraud upon the court in a proceeding • conducted entirely by defendant, it is not a bar to a subsequent prosecution for the same assault for the reason that, because of . said fraud, the- court had no jurisdiction and, therefore, there was no legal jeopardy.</p> <p>Section 527 of the Criminal Code, which authorizes the appellate court to order a new trial if satisfied that justice requires it, though no exception was taken on the trial, does not modify the rule that error in the admission or exclusion of evidence can be availed of only by objection and exception duly taken.</p> <p>A sentence to ninety days in the penitentiary and a fine cf twenty-five dollars and imprisonment until such fine be paid not exceeding twenty-five days is not excessive on conviction for an uncalled for and brutal assault.</p>

<p>Claim for damages arising out of a contract for the construction of a portion of the Barge canal.</p>

Reargumeiít of an appeal from an interlocutory judgment of the City Court of the city of Yew York overruling a demurrer interposed by plaintiffs to a defense and a counterclaim contained in defendant’s answer.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Eew York, borough of Manhattan, first district, in favor of the defendant, rendered after a trial before the court without a jury.

Appeal by the defendant from a judgment entered in the Municipal Court of the city of New York, borough of Manhattan, second district, in favor of the plaintiffs.

Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of the defendants dismissing the complaint.

Appeal by the judgment debtor from an order of the City Court -of -the city of Mew York, adjudging the appellant guilty of a contempt of said court.

Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Oourt of the city of New York, borough of Manhattan, third district.

Appeal by the defendant from a judgment of the Municipal Oourt of the city of Eew York, borough of Manhattan, ninth district, rendered in favor of the plaintiff.

<p>Appeal by the defendant from a judgment and order of the Municipal Court of the city of New York, borough of Manhattan, third district.</p>

Appeal by the defendant from two judgments of the City Court of the city of New York in favor of the plaintiff and also from two orders entered herein.

<p>Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, after a trial before the court without a jury.</p>

<p>Appeal by the plaintiffs from a judgment of the City Court of the city of Few York entered upon a verdict rendered in favor of the defendants and from an order denying a motion for a new trial.</p>

Appeal by plaintiff from an order of the City Court of the city of 3STew York denying plaintiff’s motion for a relaxation of costs.

<p>Sales — Interpretation and evidence of contract — Establishment. of price. ,</p> <p>Values — Evidence of market value.</p> <p>An agreement to meet the market price in an executory contract for the sale of goods is not satisfied by a price above the lowest competitive bid for the sale of such goods in fair and open competition.</p>

Appeal by the landlord from «a final order dismissing the petition of the landlord in summary proceedings at the close of the landlord's case.

Appeal by the 'defendant from, a judgment of the Municipal Court of the city of New York, borough of Manhattan, eighth district, rendered in favor of the plaintiff.

Appeal by the defendant from five judgments in favor of the above named plaintiffs, respectively, rendered in the Municipal Court of the city of New York, borough of Manhattan, second district.

<p>Negligence—Acts or omissions constituting negligence — Dangerous machinery and substances — Machinery and other objects attractive to children.</p> <p>Saving questions for review — Objections and exceptions in general — How taken — Dismissal, nonsuit or direction of verdict.</p> <p>Where a heavy machine was left standing on a platform next to the street but not within it, and a boy, who was playing there but who was not attracted by the machine nor playing with it, in falling struck or kicked a lever upon the machine causing a punch to fall which injured him, negligence on the part of the owner who left the machine there is not to be inferred from the circumstances.</p> <p>In such a ease, a motion by the defendant to dismiss the complaint, on the ground that the plaintiff was guilty of contributory negligence and that the proximate cause of the injury was the jumping of the boy and not the turning of the lever, is sufficient to save the question as to the sufficiency of the proof of defendant’s negligence.</p>

Appeal by.the defendant from a judgment of the City 'Court of the city of New York entered in favor of the plaintiff upon the verdict of a jury.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the defendant.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, rendered in favor of the plaintiff.

<p>Eminent domain: Property subject to appropriation — Property already appropriated for public use: Condemnation proceedings — In general—• County in which proceeding should be instituted; Notice — To whom notice should be given; Parties; Bringing in new parties.</p> <p>In a proceeding for the condemnation of land in Westchester county the venue is properly laid in that county, and the motion on the petition may be made at a Special Term held in any county within the ninth judicial district.</p> <p>By the provision of section 3361 of the Code of Civil Procedure, requiring service of the petition and notice of the time and place of its presentation to the court upon all the owners of the property acquired hy condemnation, service upon those who claim such ownership is required; and where there are conflicting claims of ownership all persons claiming such ownership are_ necessary parties to the proceeding.</p> <p>The provision of section 452 of the Code of Civil Procedure, which authorizes joining as defendants all persons claiming an interest in the controversy or real property involved is made applicable to condemnation proceedings by section 3382 of said Code.</p> <p>State lands under the waters of the Hudson river, held by it as trustee for the public, may, under section 17 of the Railroad Law, be acquired for railroad purposes since such purposes are deemed to be a public use; and since, under section 18 of chapter 481 of of the Laws of 1910, such lands are subject to grants for such purposes by the commissioners of the land office.</p>

<p>Executors and administrators: Administrative authority and management of estate—Authority and powers in general — Joint and several powers: Parties — Corepresentatives — Necessity of joining.</p> <p>Motions and orders: Motion papers—:Notice of motion — Specifying grounds of motion: Orders to show cause—Affidavits as ground for granting order.</p> <p>An order to show cause why an order appointing a referee in a proceeding for the voluntary dissolution of a corporation should not be vacated is proper where provision had to be made for substituted service upon the petitioner and only a short interval of time remained before the time fixed for the hearing before the referee.</p> <p>The requirement of rule 37 of the General Eules of Practice that upon a motion to vacate an order because of irregularities they shall be specified does not apply to objections that are jurisdictional and upon the merits and such objections are not required to be set forth in the order to show cause.</p> <p>One executor -has no- power to sign the name of his coexecuto-r by virtue of his -office, nor can the coexecutor give him that right.</p> <p>The provision of section 1817 of the Code of Civil Procedure that two or more executors representing the same decedent are considered as one person does not change the rule that in an action for or against executors all those qualified and acting must be made parties.</p> <p>In a proceeding for the voluntary dissolution of a corporation pursuant to section 170 et seq. of the General Corporation Law the statute must he substantially followed or the entire proceeding is invalid.</p> <p>The rule that executors have the powers of joint and several agents of one principal and that any act done or performed by one within the scope and authority of his agency is a valid exercise of power and binds his associates is limited to acts ministerial in their nature and does not extend to acts calling for the exercise of judgment and discretion.</p> <p>Whether a corporation in which the bulk of a testator’s estate was invested shall be dissolved, its assets sold and its stock holdings reduced to cash, requires the exercise of the highest judgment and discretion and one of the two executors of decedent’s estate cannot bring a proceeding under the statute for the dissolution of the corporation.</p> <p>Where, in such case, the .petition was signed “ George Ehret, Jr. by George F. Trommer, George F. Trommer as executors of the last will and testament of William G. Ringler, deceased,” the proceeding is instituted by only one of the two executors, and even if the other executor should be deemed to be a petitioner the requirements of section 175 of the General Corporation Law that “ an affidavit made by each petitioner to the effect * * must be annexed to the petition and schedule ” is not met by an affidavit of the executor who made the petition.</p>

<p>Corporations — Officers and agents — In general — Eligibility to office of director — Holding stock — Necessity that stockholder be beneficial owner.</p> <p>The rule that the ownership of a beneficial interest in corporate stock standing in one’s name is necessary to qualify the holder to become a director of the corporation was not changed by the amendment of 1901 to section 20 of the Stock Corporation Law which permits the enactment of by-laws regulating the qualifications of directors; and the election as a director of one who held stock simply as trustee is illegal, even though a by-law of the corporation, passed in 1889, authorized the election as a director of one who was the “ holder or owner ” of stock.</p>

<p>Application for the payment of trust funds of 'an infant for his support.</p>

<p>Hearing upon the return to a writ of habeas corpus.</p>

Proceeding to review the action of the State Commissioner of Excise in refusing to file a notice of abandonment of premises designated in the liquor tax certificate as the place for trafficking in liquor thereunder.

<p>Motion" for a peremptory writ of mandamus.</p>

<p>Civil service — In general — Examinations — Character and scope of the examination; Effect of examination; Certification of eligibles.</p> <p>Upon an application to set aside a competitive civil service examination and to revoke, certifications to appointments to positions based thereon, the court will not intervene if the action of the civil service commission is not probably illegal.</p> <p>Questions propounded to candidates for civil service examinations which have some relevancy to the duties of the position the candidates seek to fill do not render the examination illegal and avoid its results because one of the questions is so framed that it is impossible to give a correct answer to it and another treats of a condition that is so rare as to be a medical curiosity.</p> <p>Nor does a printed statement at the top of an examination paper that “A systematic verification of the statements in this paper will be made ” constitute a contract with the candidates that their answers to statements concerning their personal history and experience will be verified; and the omission of the examiner to verify the statements of candidates by reference to information obtained by external inquiry does not vitiate such examination.</p> <p>Nor is the examination vitiated because in estimating the credit to be given upon the “ experience paper ” the examiner takes into consideration the candidate’s method of expression.</p> <p>One occupying at the time by temporary appointment a position required to be filled by appointment after competitive examination does not thereby acquire a preference over those who have obtained a higher rating upon the examination, nor a right to retain permanently a position he holds by temporary appointment.</p>

<p>Application for a writ of mandamus.</p>

<p>Specific performance — Subject matter of enforcible contracts — Contract for use of land.</p> <p>Although a license to use real property for advertising purposes is revocable, where it was given for a valuable consideration with a promise that it should be enjoyed for a specified period, the court, in a proper ease, will decree specific performance.</p>

<p>Motion for an injunction pendente litet</p>

<p>Motion to continue pendente lite an order enjoining defendants from bringing plaintiff to trial.</p>

<p>Application for the appointment of a receiver.</p>

<p>Banking associations and corporations — Insolvency of banks — Preference of creditors — Payment of checks through clearing house after close of bank.</p> <p>Where the Superintendent of Banks closes a bank and takes possession of its assets, the relation which all its depositors bear to the fund is then fixed and determined,</p> <p>A depositor having money on deposit in such a bank, whose checks, already drawn, are afterward paid through the clearing house, is not entitled to be paid any dividend in the course of the administration of the assets of the bank until the other depositors have received as large a percentage of their respective deposits as he has received of his deposit by the payment of such checks.</p>

<p>Application by John 0. Davies to fix amount of his fees as referee.</p>

Action for an accounting and for judgment for such sum as may be in the hands of defendant, as secretary and treasurer of the plaintiff’s 'Sunday school.

<p>Banking associations and corporations: Officers — Authority in general— Directors: Liability of stockholders for corporate debts'— .Evidence — Judgment against corporation; To what debts and claims liability extends — Obligations outside of ordinary course of business and ultra vires..</p> <p>Contracts — Interpretation of contract — Particular agreements — Agreements to assume indebtedness and liabilities of or to third persons.</p> <p>Corporations: Power of corporation to make contracts and effect of ultra vires contracts—Ultra vires contracts: Liability of stockholders to creditors — Claims against corporation for which stockholders are liable —Time of maturity of debts.</p> <p>Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Ratification and affirmance — Receiving benefits or proceeds.</p> <p>Principal and surety — Discharge of surety —Loss of securities.</p> <p>In an action against stockholders of a banking association to charge them with liability for the debt of their bank, a judgment against the bank for the alleged debt is not evidence of the genuineness or validity thereof; nor is this rule changed by the provision of section 55 of the Stock Corporation Law (Consolidated Stock Corporation Law, § 59) that the amount recoverable against stockholders in such case shall be the amount of the execution issued against the corporation upon the judgment against it. Such a judgment binds the assets and property of the corporation, hut does not bind the stockholders.</p> <p>Nor are the stockholders concluded by the denial of a motion made by the bank to open the judgment against it and permit it to set up some of the defenses of which the stockholders seek to avail themselves.</p> <p>Stockholders of a banking corporation are only liable for such debts, contracts and engagements as have been made in the ordinary course of its business and are not ultra vires.</p> <p>The right to determine when it. shall go into liquidation and the right to choose the liquidator of the affairs of a banking corporation are not vested in the directors of the corporation but in its stockholders.</p> <p>An agreement by the directors of a bank with another banking corporation, by which the latter shall advance sufficient money to pay the former’s depositors and enable it to go out of business and .into voluntary liquidation and by which all the assets of the former are pledged to the latter as security for such advances, without any meeting or vote of the former’s stockholders, is beyond the powers of the former’s directors; and its stockholders are not liable for indebtedness growing out of such contract.</p> <p>Nor is a stockholder of the liquidating bank who had moneys on deposit with it estopped from questioning the authority of the directors to make the contract in question because they received repayment of their deposits from the latter bank pursuant to the contract.</p> <p>Where, prior to the making of the liquidation agreement, the former bank had borrowed $50,000 on its note from the bank with which it afterward made the agreement, and had at that time given adequate collateral to secure it, the stockholders of the former bank are entitled to have the collateral applied to its payment; and the latter bank cannot, under the liquidation agreement, divert the collateral to the payment of indebtedness arising thereunder.</p> <p>The liquidation agreement containing no express promise on the part of the liquidating bank to repay any of the advances that might be made by the latter bank in carrying out the agreement, and the directors of the former bank having united in a guaranty to the latter hank against loss by reason of making such advances, upon a review of all the provisions of the liquidation agreement, held, that it should be construed as intending to impose a personal liability on the stockholders of the former bank only for such deficiency as might exist after all the assets pledged had been realized upon and applied toward the payment of such advances.</p> <p>It is not sufficient, in order that the statutory liability under section 59 of the Stock Corporation Law shall attach, that the debt for which, the liability is imposed may be payable in two years, but such debt must by its terms or by necessary implication be payable within that period; and, since the present contract is silent as to the time within which the liquidation of the former bank is to be completed and its affairs wound up, except that it is to be accomplished with due diligence, and since it does not appear what period of time would be necessarily required therefor, but as matter of fact it was not completed until long after the expiration of two years from the time of the making of the agreement, the stockholders were not liable for the indebtedness arising under the contract.</p>