Volume 93 — New York Supreme Court Reports

<p>Corporate stock issued fot'propé'ty under chapter 833 0/ 1853 — proof necessary to enforce the liability of a stockholder under section 10 of chapter 40 of 1848 — purchase)' of stock, liable if the certificate filed be false — motion for a new trial — affidavits of jurors as to their erroneous views of the lam.</p> <p>Where the trustees of a corporation have issued stock in payment of the purchase price of property necessary for its business, under the provisions of chapter 333 of the Laws of 1053, and a creditor of the corporation attempts to enforce the individual liability of a stockholder thereof, under section 10 of chapter 40 of the Laws of 1848, such creditor is bound to prove, first, that the stock issued exceeded in amount tho value of the property, in exchange for which it was issued, and, second, that tho trustees at the time deliberately, and with knowledge of the real value of the property, overvalued it,'and paid for it in stock an amount which they knew was in excess of its actual value, and that by reason thereof the assets of the company were deliberately impaired.</p> <p>The creditor must also show the value of the property at the time the stock was' issued therefor.</p> <p>Any testimony, such as proof of conversations and acts of parties who were at the same time directors of the corporation and owners of-the property purchased by its stock, which goes to show what was the. true value of the property, at that time or to show what contract was actually made by the trustees with the owners of the property bought; what consideration was paid to them and the way in which the consideration was paid, is competent as bearing upon the intention with which the trustees paid in stock more than the value of the property.</p> <p>Under section 10 of chapter 40 of the Laws of 1848, every person who buys stock of a manufacturing corporation is liable for the debts of the corporation until the certificate provided for in that section is filed.</p> <p>When the stock of a manufacturing corporation is issued under chapter 333 of the Laws of 1853 it becomes paid-up stock, not necessarily by the filing of a certificate but by the filing of a certificate which is true. Any one who has occasion to buy stock which is issued in that way is bound not only to see that the certificate has been filed, but, at his peril, to ascertain whether or not the certificate represents the truth, and whether the property which has been taken in payment of the stock is worth the stock which had been delivered for it.</p> <p>A motion for a new trial of a case on the ground of newly-discovered evidence, will not be granted where there is no statement in the moving papers showing that the newly-discovered evidence is of importance, and where there is no probability that the newly-discovered evidence would, if given on the’trial, have changed the result of the trial.</p> <p>The affidavits of jurors, offered to establish the fact that their verdict proceeded upon a mistaken view of the law, cannot be read; nor can such facts be established by the declarations of the jurors made', after the verdict has been rendered, to other persons who embody them in an affidavit used upon a motion, for a new trial.</p>

<p>Implied promise to pay for services — undisclosed principal — waiver of a lien of a common carrier — -effect of a partial delivery — what does not constitute delivery so-as to waive a lien.</p> <p>Immediately, upon a request being made that services be performed and tbe performance of the services, the law implies a promise upon the part of the person requesting such performance to pay the person who renders the same at liis. request whatever the services are reasonably worth, and the fact that the person performing such services, at the time of the performance thereof, did not know the name of the person requesting such performance and had no personal dealings with him concerning the transaction, in no way affects the liability of the person requesting that the services be rendered.</p> <p>Where a person deals with the agent of an undisclosed principal, it is the undoubted right of such person as soon as the principal is discovered to look to him for the fulfillment of the contract made by such agent pursuant to his authority.</p> <p>To constitute a waiver of its lien by a common carrier, delivery must be made with such intent, or it must be made under such circumstances that the law will presume the intent to have existed, and nothing1 must remain to be done by the carrier in order to fully perform its contract.</p> <p>A delivery may be complete for one purpose and not for another. A delivery of a part of merchandise transported by a common carrier does not discharge the-carrier’s lien upon the undelivered portion thereof. If the lien is not waived, it remains attached to whatever portion of the property may remain in the possession of the carrier.</p> <p>A railroad company placed certain cars containing coal, which had been transported by it, upon " a stub track,” so called, which was built upon land owned by the consignee, the land and railroad ties having- been furnished by such consignee, and the iron by the railroad company. The track was operated solely by the railroad company, and in order to place the cars in a position where the coal could be unloaded by the consignee, it was necessary to draw the cars off from the stub track on to the track of the railroad company and then upon another track, for which service the railroad charged the consignee.</p> <p>Held, in an action brought to establish a lien for freight' charges upon the coal contained in the cars, that as the coal could not be unloaded without the railroad company’s further intervention, nor without the use of its engine and crew, the merchandise was still, for the purposes of the railroad company’s lien, in the possession of the railroad company.</p>

Appeal by the defendant, The Retsof Mining Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 26th day of March, 1894, upon the verdict of a jury, rendered after a trial at the Livingston Circuit, and also from an order entered in said clerk’s office on the 26th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Edwin R. Dillingham, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 5th day of October, 1894, upon the decision of the court rendered at the Cayuga Special Term, overruling the said defendant’s demurrer to the plaintiff’s amended complaint, with notice of an intention to bring up for review upon such appeal the decision upon which said judgment was…

Appeal by the plaintiff, Clara ’Whiteman Gibbs, as administratrix, etc., of Reuben Whiteman, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Livingston on the 22d day of August, 1894, upon the decision of the court rendered at the Livingston Special Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the plaintiff, Mary E. Johnson, from an interlocutory and a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Niagara on the 30th day of October, 1894, upon the decision of the court rendered at the Niagara Special Term, sustaining the demurrer of certain defendants to the complaint, dismissing the plaintiff’s complaint and directing the cancellation of a lis pendens.

Appeal by the relators, Harry P. Pike and another, as trustees, etc., of Hannah Benrimo, deceased, and another, from an order of the Supreme Court, granted at the New York Sjiecial Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1895, dismissing a writ of certiorari to review the proceedings of the respondents as commissioners of taxes and assessments of the city of New York and confirming a certain assessment made by them.

Appeal by Charles Brenneman, as surviving executor, etc., of Frederick Leonhard, deceased, from portions of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 11th day of November, 1891, passing his accounts as such executor.

Appeal by Olarisse M. Harrison, one of the legatees named in the will of Betsey Everts, deceased, from a decree of the Surrogate’s Court of the county of Madison, entered in the Madison County Surrogate’s Court on the 15th day of March, 1894, settling and allowing the accounts of James Stevenson and another, executors, etc., of Betsey Everts, deceased, as adjusted and filed, and directing the distribution of the assets.

Appeal by William Degaramo, husband of Anna M. Degaramo, deceased, from a decree of the Surrogate’s Court of Tompkins county, entered in said court on the 2d day of August, 1894, directing the payment by Ella B. Strong, as executrix of Anna M. Degaramo, of a sum of money received by the executrix in settlement of a cause of action given her by the statutes of the State of Ohio against the New York, Lake Erie and Western Railroad Company by reason of that company having…

<p>Libel — all the pleadings considered with reference to the sufficiency of a, complaint not demurred to — words of innuendo, when necessary — presumption as to malice —justification— abuse of privilege — good faith of justification.</p> <p>Where no demurrer is interposed to a complaint all the pleadings may be examined to see whether a cause of action has been set forth in the complaint and as to whether auy indefinite allegation of the complaint has been supplied or admitted by the answer.</p> <p>The defendant in an action will not be allowed upon the trial thereof, or upon a motion for a neur trial, to deny an admission made in his answer.</p> <p>In an action brought to recover damages for the publication of a libel, words of innuendo are not now necessary, except in a case where the published words are harmless until coupled with the plaintiff, in some manner to'his injury.</p> <p>Where a publication is false and libelous, the presumptionfis that the publication was malicious.</p> <p>By pleading justification in their answer, the defendants preclude themselves from the defense that the publication was the act of their agent, particularly where the agent’s act was in the due course of his employment.</p> <p>Where the court holds a publication to be libelous, the disputed question as to whether there has been an abuse of privilege is one of fact for the jury.</p> <p>The jury has a right to determine, as a question of fact, whether a defense of justification of a publication set up in the answer was interposed in good faith.</p>