Dissolution, see Taxation, 3. Stock, see Attachment, 1. Liabilities. 7. Laws N. Y. 1848, c. 40, § 12, provided that every corporation organized under Restraining exercise of franchise. 1. A corporation whose general and or from the 1st day of January, make, publish, that act should annually, within 20 days dinary business is illegal is within Code and file a verified financial report, and for Civil Proc. N. Y. § 1809. providing that an a failure so to do imposed a joint and sevinjunction suspending the general and or-eral liability upon all the trustees for all dinary business of a corporation can be existing debts. This act was so amended granted only on notice to the proper officer by Laws 1875, c. 510, in regard to preceding of the corporation.-City of New York v. cases, as to require only that the report Starin, (Super. Ct. N. Y.) 346. 2. Where an injunction restraining the 1st of January of the year following the should be made within 20 days from the ordinary business of a corporation also restrains another from transacting the busi- January of the year in which the company ness, who in fact controlled the corpora- ing omitted. The company of which dewas incorporated; the word "annually" betion, its incorporators being men in his em: fendant was trustee in January, 1867, was ploy, and whose injunction would suspend incorporated in 1865. Held that, by omitthe business of the corporation, the injuncting the word "annually" from the act of tion, if granted without notice. is, under section 1809, void as to such person as well as to the corporation.-Id. By-laws. 1848, no liability was left upon defendant, 3. Article 3, §§ 1, 2, of the by-laws of the Musical Mutual Protective Union, which provide that it shall be the duty of every member to refuse to perform in any or8. On trial of an order to show cause why chestra in which are any persons not mem- defendants should not be punished for conbers in good standing, and that it shall be tempt in failing to obey an order to prodeemed a breach of good faith between duce certain books of a corporation of members to employ a suspended or non- which they are officers, the corporation bemember, or to assist in a public performing required by law to keep such books, ance given wholly or in part by amateurs. and article 9, § 2, which imposes a penalty for the violation of the foregoing sections. are void. because they are arbitrary and contrary to the provisions of its charter. (Laws 1864, c. 168,) which declares that its objects are the cultivation of music and the promotion of good feeling among the members of the profession, and the relief of such of their members as should be unfortunate. DANIELS, J., dissenting. Thomas v. Musical Mutual Protective Union, (Sup.) 195. Officers-Compensation. 4. Where an officer whose duties do not require any special knowledge, ability, or attention presides at a meeting of the trustees in which a resolution voting him a salary is passed, though he testifies that he did not vote, and it is not recorded that he did, no dissent appearing, the resolution is invalid.-Ashley v. Kinnan, (Sup.) 574. 5. The only testimony that the services were of any value being that of the officer himself, he cannot be held to be entitled to the salary on the quantum meruit.-Id. 6. The president of a corporation is not entitled, in the absence of agreement, to any compensation for services performed in the discharge of the duties of his office. Following Gill v. Cab Co., 1 N. Y. S. 202. there is a presumption that they have been 9. Where the treasurer of a corporation has for a number of years, with the knowl edge and consent of his principal, signed and indorsed business paper in its name, such corporation is estopped to deny the treasurer's authority to indorse an accommodation note to a purchaser for value, who relied upon these transactions as evidence of his authority.-Second Nat. Bank V. Pottier & Stymus Manuf'g Co., (Super, Ct. N. Y.) 644.* 10. In an action on an accommodation note indorsed to plaintiff by defendant's treasurer, evidence that at the time of the indorsement plaintiff was told that it was the defendant's regular indorsement, is ad missible to show plaintiff's knowledge of the agent's apparent authority to indorse -Id. Actions. 11. A complaint, in an action by a corpo ration, which does not allege whether the plaintiff is a domestic or foreign corpora tion or the state or country by or under whose laws it was created, as required by Code, N. Y. § 1775, or any facts from which | 16. The complaint alleged that defendthe court can determine to which class of ants B. and S. were connected with and corporations it belongs, is bad on demur- parties to the transactions by which the rer.-National Temperance Society & Pub-land-grant bonds were to be issued to the lication House v. Anderson, (Super Ct. Buf.) 49. 12. Under Code Civil Proc. N. Y. § 431, providing that personal service of a summons on a domestic corporation shall be by delivering a copy to the president or other head of the corporation, its secretary or clerk, cashier or treasurer, or a director or managing agent, service on an assistant treasurer, holding none of the enumerated positions, is irregular and void.-Winslow v. Staten Island R. T. R. Co., (Sup.) 682. Stockholders' rights and liabilities. 13. A stockholder cannot sue an officer for injury to corporation property, caused by his misfeasance in office, unless the corporation refuses to sue, and in that case the corporation must be made a party defendant. Code Civil Proc. N. Y $452, providing that the court may determine the controversy, as between the parties, where it can do so without prejudice to the rights of others, or by saving their rights, does not apply. Nor does section 1782, allowing a creditor, trustee, director, manager, or other officer of a corporation, having general superintendence of its concerns, to bring an action against the officers to set aside an alienation of corporation property made by them contrary to law, or foreign to the business of the corporation, apply to a stockholder.-Stromeyer v. Combes, (C. P. N. Y) 232. 14. That the action is in tort against an officer who acted on his own responsibility in alienating corporation property, and signed the instrument individually, and not as trustee, does not alter the rule, as whatever damage plaintiff sustained was caused by defendant acting officially, and if he was not acting officially his act was nugatory.-Id. construction company, and that its president and secretary had confederated with B. and S. to secure to themselves the first of the bonds, in fraud of plaintiffs' rights, and that some of such bonds had been issued to B. and S. and others, and used by them in locating lands, so as to give them unfair preferences. There was nothing in the complaint indicating that B. and S. had given a valuable consideration for the bonds. The prayer was for an accounting of the transactions of the company, including the receipt and disposition of the bonds, and that B. and S. account for those received by them. Held, that the complaint was sufficient, as against B. and S., under Code Civil Proc. N. Y. 447, providing that in equitable actions all persons may be brought in who have any claim or interest in or to the subject-matter, or any part of it.-Id. 17. The allegation that the president, secretary, and board of directors of the company were confederated with defendants B. and S., and others, in the misconduct alleged, shows a sufficient reason for not first applying to those officers to bring an action in behalf of the company. Besides, the rule does not apply where the action is brought to protect, not the rights of the company, but those of the shareholders themselves, against the acts of the officers. -Id. 18. Under Laws N. Y. 1848, c. 40, § 10, providing that stockholders of a corporation shall be liable to its creditors to an amount equal to the amount of their stock until the entire capital stock is paid in, and a certificate thereof made and recorded as prescribed in section 11, which requires the certificate to be verified, and recorded in the county clerk's office within 30 days after payment of the last installment of the 15. The complaint alleged that plaintiffs capital stock, failure to make and record were stockholders in a railway construc- such certificate with the required time rention company which, under a contract with ders the stockholders individually liable, a company whose road it had constructed, though the entire capital stock has been held land-grant bonds secured by mort-paid in.-Plass v. Housman, (Sup.) 235. gages, which it proposed to divide among its members and then dissolve; that the lands were to be appraised. and taken by the bondholders at their appraised value, thus securing equality of rights; but that bonds had been issued by the officers of the company under which such officers and others had derived unfair benefits, and appropriated valuable unappraised portions of the lands, leaving plaintiffs and other 20. In proceedings to dissolve an incorshareholders inferior lands. Held, that the porated sporting club it appeared that it facts alleged entitled plaintiffs to protec-owned real and personal property worth tion and redress.-Meyers v. Scott, (Sup.) more than $2,000, and owed no debts: that 753. it originally consisted of 45 members, 15 19. Laws N. Y. 1848, § 10, declaring that a corporation shall be dissolved unless its capital stock is paid in within two years after its incorporation, applies only to the payment of the stock, and does not require such certificate to be filed within the two years.-Id. Dissolution. Liability for, see Executors and Adminis of whom remained, 9 of these being in fa- | Fees of witnesses, when taxed, see Witness, vor of dissolution, and 6 opposed; that an- 10. nual dues were its only source of income; that there was no capital stock, as such, but the rights and privileges of the members were equal; that the club was organized on the "tontine" principle. Held, that under Code Civil Proc. N. Y § 2429, providing that, before making final order dissolving a corporation, the court must be satisfied either that the corporation is insolvent, or that dissolution is for the interest of the stockholders, and not injurious to public interests. the condition of the corporation did not warrant its dissolution. Code Civil Proc. c. 17. tit. 11, providing for and regulating proceedings for the dissolution of corporations, does not apply to a social club organized as a corporation.-recovers on one or more of the issues, and In re Livingston Sportsmen's Ass'n, (Sup.) 63. 1. Where plaintiff in replevin recovers judgment for one of several chattels sued for, the defense being without merit, and defendant recovers as to the rest, plaintiff only should be allowed costs; the case not being within Code Civil Proc. N. Y. § 3234, providing that where the complaint sets forth separately two or more causes of action on which issues are joined, if plaintiff defendant on the others, each party is entitled to costs.-Newell Universal Mill Co. v. Muxlow, (Sup.) 223. 21. A controlling interest in a corporation, originally organized by tea dealers to 2. The questions as to the right of husfoster, protect, and reform certain lines of band and wife to sue each other at law. trade, and to settle differences and pro- and of the right of a husband to recover of mote friendly intercourse between mem- his wife's separate estate money advanced bers, and to continue 50 years, was ac- for the benefit thereof, being novel and unquired by sugar dealers, who made appli- settled, the case is a proper one for the excation under Code Civil Proc. N. Y. § 2429, ercise of discretion as to costs, and none to dissolve it, on the ground that it would should be awarded to either party.-Albe "beneficial to the interests of stock-ward v. Alward, (Sup.) 42. holders," for the purpose of dividing the Who liable. assets, which consisted largely of money received for shares. The later subscriptions were for a much greater amount than the original ones. The tea dealers required an exchange, and opposed dissolution. Held, that in the absence of a special provision, giving a majority the right to it, a dissolution is not required by the Code, because beneficial to a majority, and should be denied. In re Importers' & Grocers' Exchange, (C. P N. Y.) 257. 22. Where a referee's report on a petition for dissolution of a corporation enumerates more books of the corporation than are contained in the schedule annexed to the petition, the discrepancy is not ground for refusing final order, the trustees having made the schedule in good faith. In re Santa Eulalia Silver Min. Co., (Sup.) 221. sufficient to satisfy an execution, and re3 A sheriff who has collected more than fuses to pay the balance to the judgment debtor, is liable for the increased costs prescribed by Code Civil Proc. N. Y. § 3258, in actions brought by reason of an act of a public officer, or an alleged omission by him to do an act which it was his official duty to perform.-Van Gelder v. Hallenbeck, (Sup) 252, Security for costs. 4. Code Civil Proc. N. Y. § 3272, which provides that, "where security for costs is required to be given, the court in which the action is pending, * * upon due proof, by affidavit, of the facts, must make an order requiring the plaintiff, within a time specified," to give security, is manda tory; and upon appeal after judgment the 23. An inventory of corporate property court should require security on an ex parte accompanying a petition for dissolution, application of defendant, upon due proof which, though not as full as required by of the facts entitling defendant to the statute, omits nothing fraudulently or in same.-Wood v. Blodgett, (Sup.) 304. bad faith, gives the court jurisdiction.-Id. 5. The court, in its discretion, after judg24. One holding corporate stock as ex-ment and before appeal, may require seecutor may become at least a de facto trus-curity for the payment of costs already actee of the corporation, and as such join in a petition for its dissolution.-Id. COSTS. crued; but such order must be on notice to plaintiff, and not on an ex parte application of defendant.-Id. 6. A motion for security for costs, made two years after suit brought, and after Failure to obey order for payment, see three trials, two of which had resulted in a Abatement and Revival, 3. disagreement of the jury, and a third in s dismissal of the complaint, from which plaintiff had appealed, should be denied.Wolf v. Houston, W. S. & P. F. R. Co., (Sup.) 789. 7. Under Code Civil Proc. N. Y. § 3268, giving a defendant the right to require security for costs where the plaintiff is a nonresident, the court has no discretion, but is bound to grant the application, when made with diligence.-Churchman v. Merritt, (Sup.) 843. 8. Under section 3272, providing that, where security for costs is required to be given. the court or a judge thereof, "upon due proof, by affidavit, of the facts, must make the order," the order may be made without notice.-Id. 9. The fact that a non-resident plaintiff has sufficient property in the state to satisfy a judgment for costs cannot affect defendant's right to security.-Id. Taxation. 10. Where plaintiff recovers judgment in one cause, and defendant in another, in the same action, and the costs adjusted are set off against each other to the extent of plain tiff's costs, which are smaller, and on appeal by defendant the judgment against him is reversed, defendant is entitled to interest on the costs adjudged to him below. -Van Gelder v. Hallenbeck, (Sup.) 252. 1. A declaration in the county court for work performed, which alleges that the work was reasonably worth $1,000, "or thereabouts," and that defendants had only paid $500, "or thereabouts, " and prays an account, and for judgment for $1,000, or any less amount found due in respect of the services mentioned, is suffi11. The amount of a counsel fee to be cient to give the court jurisdiction, under allowed plaintiff's attorney, as indemnity Const. N. Y. art. 6, § 15, providing that for legal expenses incurred by reason of county courts shall have original jurisdicdefendants' refusal to obey a subpæna tion "in all cases * * * in which the duces tecum, being matter of proof, and damages claimed shall not exceed $1,000. not of discretion, the allowance of a cer--Dwyer v. Rathbone, Sard & Co., (Sup.) tain amount, without proof, is reversible error.-Fenlon v. Dempsey, (Sup.) 763. Costs on appeal. 12. Where a judgment is modified by the court of appeals without costs, a mo tion for satisfaction of judgment upon tender of costs at special term, without the costs at general term, is properly denied; no proof being given that costs in the general term were meant to be denied as well as costs in the court of appeals.Callanan v. Gilman, (Super. Ct. N. Y.) 702. 13. Code Civil Proc. N. Y. §§ 2558, 2560, when compared with section 2589, while they provide for the adjustment in surrogates' decrees of costs in appeal proceed ings, do not give to the surrogate any power to award such costs when the appellate court has failed or refused to award them. In re Hatten's Estate, (Sur. N. Y. Co.) 493. 14. The fact that the supreme court, on appeal, directed a jury trial in the court of common pleas, does not authorize the surrogate to tax the costs. The cases in which he is, by Code Civil Proc. N. Y. § 2558, authorized to tax the costs of a jury trial, are where he has ordered the trial v.2N.Y.S.-57 170. Adjournment. 2. Code Proc. N. Y. § 34, authorizing an adjournment from day to day or to a specified time, does not warrant a court which has adjourned until a day named in sitting on a later day without any session on the earlier day and further adjournment, and a conviction on the later day is coram non judice, although caused by a severe storm, which rendered it impossible to sit on the proper day, in spite of section 35, providing for the opening of a term and its adjournment in case the judge fails to attend, and defendant's failure to object to the trial proceeding would not waive the irregularity.-People v. Sullivan, (Sup.) 135.. CRIMINAL LAW. See, also, Arrest; Indictment and Informa Principal and accessory. 1. Pen. Code, N. Y. § 29, defining a principal as "a person concerned in the com CUSTOM AND USAGE. mission of a crime, whether he directly was affirmed by the court of appeals, and commits the acts constituting the offense the cause remitted. Held, that the general or aids and abets in its commission, and sessions properly directed the sentence to whether present or absent, and a person be executed, and named a day therefor. who directly or indirectly counsels, com--Id. mands, induces, or procures another to commit a crime. " while it embraces as principal what was before known as an accessory before the fact, does not change the form of pleading in cases where a person was principal at common law; and where defendant's acts would make him a principal at common law, the indictment need not set forth the particular acts showing him to be a principal within the provisions of the statute.-People v. Batterson, (Sup.) 376. Motion to quash. 2. A motion to set aside an indictment may be made on other grounds than those specified in Code Crim. Proc. NY $313. People v. Price, (Albany Sess.) 414.* 3. On motion to quash an indictment, an affidavit by defendant on information and belief that no testimony was introduced before the grand jury on an essential point, that being a matter peculiarly within the knowledge of the prosecuting attorney, is sufficient to require him to disprove the allegations, if untrue.-Id.* Verdict. Contract not modified by, see Sale, 6. The contract calling for "amber-colored bottles, to weigh two ounces. and to be of uniform weight and color," evidence is admissible to show that it is impossible to produce bottles absolutely uniform in weight and color, and that the custom of the manufacturers has established a limit of variation to be allowed, and which was not exceeded.-Whitney v. Hop Bitters Manuf'g Co., (Sup.) 438. DAMAGES. See Eminent Domain, 17–24. Allowance of treble damages, see Appeal, 2. Trover and Conversion. 4. On indictment for assault in the first degree, by shooting, where defendant admits the shooting, but pleads self-defense, Plaintiff's physician testified, relative to there must be an acquittal, or a verdict of the disease alleged to have resulted from guilty either in the first or second degree, the injury, that plaintiff would very likely as the evidence may show; and defendant recover in time, but probably not before a is not entitled to an instruction that the change of life, not saying whether she jury may find an assault in the first, sec- would probably suffer pain in the future. ond, or third degree, or an attempt to as- There was evidence that her health was sault in any of those degrees, as provided good until the accident, ever since which by Pen. Code N. Y § 35, as the plea of self-she had suffered pain. Held, that an indefense admits the higher grade of the crime. People v. Dartmore. (Sup.) 310. Sentence and punishment. 5. A prior conviction, to be available in increasing punishment for second offense, must be alleged in the indictment, and on the trial there must be proof of the identity of the accused.-People v. Price, (Albany Sess.) 414.* Appeal. 6. Code Crim. Proc. N. Y § 517, providing that an appeal from a sentence of death must be to the court of appeals instead of the supreme court, as theretofore, is constitutional.-People v. Lyons, (Sup.) 604. 7. Code Crim. Proc. N. Y $549, provides, in reference to criminal appeals. that after the certificate of judgment has been remitted, all orders to carry the judgment into effect must be made by the court to which the certificate is remitted. Defendant's sentence of death in the general sessions struction that the jury might allow plaintiff for such future suffering as they believed would ensue from the injury was erroneous, such suffering being too specu lative. LANDON, J., dissenting.-Dawson v. City of Troy, (Sup.) 137. DEATH BY WRONGFUL Pleading. 1. Under Code Civil Proc. N. Y. §§ 1902. 1903, giving the administrator of a decedent who has left surviving him a wife or next of kin, a right of action for a wrongful act causing the death, where the complaint alleges that "defendant left him surviving his widow," the use of the word "defendant" instead of "decedent" may be regarded as a clerical error, and immaterial.Kenney v. New York Cent. & H. R. R. Co.. (Sup.) 512. 2. Under Code Civil Proc. N. Y. § 1904 |