that after Dr. B. came he and Dr. C. and, as witness thought, Dr. M., with witness and one P., a relative of the lad, went into the parlor bedroom and discussed what had better be done; that Dr. C. asked witness what he thought, and witness replied that if the boy was his he would have his legs amputated; that during the interview T. asked whether the boy's father took any responsibility in the matter, and witness said they need not hesitate on account of the boy's father, that witness would stand between him and them, all harm or all damages. "I think," said the witness, "that is all I can remember." He further testified: "I did not in that room say to either of the doctors or any of them, 'go on and do what you can for him and I will pay for it."" * * "After the interview in the parlor bedroom when we four were there, there was no time when the three doctors and myself went into the kitchen (diningroom) bedroom. I never was in the kitchen bedroom when Dr. Baker was present. The time when we were in the kitchen bedroom was before Dr. Baker arrived, and then Dr. Cridler was in the bedroom most of the time. Mary (the boy's mother) was there and Dr. McKinnon stood in the door part of the time. I wasn't in the parlor bedroom having any conversation, only as I have stated when Mr. Pitts and Dr. Cridler and Dr. Baker were present; never was there but that once. There was no time when the three doctors and I were in that bedroom * with the door shut, and when I J. H. Stevens, for applt. Held, Defendant's testimony is not merely negative; it details the conversations, and it positively denies that certain words imputed to him by plaintiffs' witnesses, and the only words constituting a promise were uttered by him. He does not deny according to his best recollection; he does not rest upon a mere want of memory, but he gives his version of the interviews and conversations positively, and as positively denies making the promise testified to by plaintiffs' witnesses. If his version is untrue he would be as liable to the charge of perjury as would plaintiffs be if their statement is untrue. The charge was erroneous and may have prejudiced defendant. N. Y. COURT OF APPEALS. Blake, respt., v. Griswold, impl❜d, applt. Decided Nov. 23, 1886. Evidence sufficient to support a finding that a trustee in making a report asserted a falsehood. Corporate books are not only evidence of corporate acts when those need to be proved; but are to some extent evidence against the stockholders who are chargeable with knowledge of their contents. Evidence admissible on question of value. This action was brought to enforce the penalty fixed by § 15 of the general manufacturing act, (Laws of 1848, Chap. 40,) for stating in the annual report of the Iron M. Co., a corporation organized under said act, of which appellant was one of the trustees, and of which plaintiff was a creditor, that the capital stock of $2,000,000 had been fully paid in. The defense pleaded was that the whole capital stock of said company had been issued to one R. in payment for a mining property bought by him of the K. Ore Co. Plaintiff claimed that such purchase was made for a far less amount and that the property was of much less value. It was proved that appellant was a trustee or director in both companies; he being named as one of the trustees in the original certi Vol. 25-No. 2a. ficate of the Iron M. Co.; that he received $10,000 of the stock without consideration to enable him to act as trustee. He also knew that 1,000 shares of the stock and $70,000 of the company's bonds were pledged for a loan of $35,000 to the company, the officer who negotiated this loan having been given 500 shares of stock. It was also proved that appellant had been over the property and knew it to be undeveloped. The property was proved to be worth not over $60,000, and to have been sold to R. for $1,000,000 stock and $200,000 of bonds of the Iron M. Co. The consideration expressed in the deed to said company was $600,000. All of which appellant knew. The court found that appeilant in making the report in question had asserted a falsehood. William C. Holbrook and M. D. Grover, for applt. Richard L. Hand and E. 7. Brackett, for respt. Held, No error; there being a substantial basis in the evidence for the finding of the trial court. L. S. Mining Co. v. Drexel, 90 N. Y., 87, distinguished. The book of stock certificates, the stock ledgers and the minutes of the two companies were offered and received in evidence. Held, No error. Corporate books are not only evidence of corporate acts when those need to be proved, but are to some extent evidence against the stockholders who are chargeable with a knowledge of their contents. To prove the value of the property plaintiff called B. He swore to a large experience in the development of iron mines, the transportation of ore, and difficulties and uncertainties of determining its extent and quality. The witness had examined the property so far as was at the time possible. When asked what the value was he answerded it was "speculative." Held, That this evidence was properly received; that the witness meant that as a mining property and for mining purposes its value was uncertain, but beyond that it had a value as land and for agricultural purposes. M., another witness as to value of the property, had been a manu. facturer of iron and bought and sold ores for twenty years, and had bought and sold mineral lands. He knew this property and had owned land in its vicinity for a long time. Held, That he was a competent witness. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Finch, J. All con cur. MECHANIC'S LIEN. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Jacob Haag et al., respts., v. Charles Hillemeyer, applt. Decided July, 1886. Where an action to establish and foreclose a lien is brought pursuant to Chap. 402, Laws of 1854, and amendments thereto, and judgment rendered therein which was set aside on appeal and a new trial granted, it is proper to deny a motion to dismiss the action, although more than a year had expired since the determination upon appeal and the case had not been retried. The case is still one where "proceedings are commenced," and the lien continues until judgment is rendered," that is, until a final judgment is rendered. This action was brought by plaintiff to establish and foreclose a mechanic's lien under Chap. 402, Laws of 1854, and the amendments thereto. It is provided by the act, as it now stands, as follows: "Every lien created under the provisions of this act shall continue until the expiration of one year, unless sooner discharged by the court or some legal act of the claimant in the proceedings, but if within such year proceedings are commenced under this act to enforce or foreclose such lien, then such lien shall continue until judgment is rendered therein and one year thereafter. Such lien shall also continue during the pendency of an appeal and for one year after the determination there of." Plaintiff obtained a judgment, which was appealed from and reversed with a direction for a new trial, costs to abide event. This determination upon the appeal was made over a year since, and the case has not yet been retried. Plaintiff moved to dismiss the action, which motion was denied, and from the order denying such motion this appeal is taken. Joseph S. Wood, for respts. Bartlett, Wilson & Hayden, for applt. Held, That the motion to dismiss the action was properly denied. The section saves the proceedings until a judgment is rendered. When a note or draft is delivered to a bank for collection and is sent by said bank to a second bank with an indorsement that it is so sent for collection and with written instructions to that effect, and the first bank subsequently fails, the second bank cannot hold said note or draft for its security against a general balance due it from the first bank, but must return the paper to the owners, and if it fails to do that when a proper demand is made, and afterwards proceeds and collects the same, it is chargeable with a conversion thereof. When a bank to which a person has delivered a note or draft for collection sends such draft to another bank for that purpose and subsequently becomes insolvent, the owners of the paper are entitled to repossess themselves of it from the second bank and proceed with its collection themselves. Plaintiff's assignor indorsed in blank and delivered a note and a draft to the State Bank of West Virginia with written instructions that they were so delivered for collection. The State Bank of West Virginia transmitted them to defendant with an indorsement that they were sent for collection, and with a letter to the same effect. After that, and before either demand was collected, the State Bank of West Virginia became insolvent, and failed in its business, and thereafter plaintiff's assignor demanded the note and draft of defendant, which refused to deliver them up, claiming to hold them against overdrafts previously made by the State Bank of West Virginia. This action was then brought to recover said note and draft or damages for their conversion. It appeared that the paper was not credited in defendant's account with the State Bank, and that no draft or check was drawn upon defendant by the latter bank against either of these demands, nor was any advancement at any time made upon them to said bank by defendant, and that the indebtedness against which defendant claimed the right to hold these instruments was the general balance due it on the account between the two banks. It further appeared that defendant had collected said demands. It was also urged in behalf of defendant that the action could be maintained only by the State Bank of West Virginia. Judgment was rendered for plaintiff. Chas. B. Alexander, for applt. demand for it was made, and afterwards proceeded to collect the notes and draft, it was chargeable with a conversion of those instruments. 39 N. Y., 441; 4 Com., 497; 47 N. Y., 431; 1 Keyes, 321. That plaintiff could maintain the action, for when the State Bank became insolvent and incapable of performing the functions of its agency, the owners of the paper were not bound to permit it to proceed with the transaction any further, and they were entitled to repossess themselves of it and proceed with its collection themselves. 55 Barb., 75; 59 id. That the cases holding that the bank transmitting the paper can alone maintain an action against its agents are not in conflict with this proposition, for plaintiff here, as well as the parties from whom he derived his title, proceeded in disaffirmance of the agency on account of the insolvency of the intermediate agent and the refusal of defendant to observe and fulfill the obligations of its agency. Held, That the State Bank of West Virginia did not obtain any title to the paper otherwise than in its agency for its collection by the delivery of the draft and note to it; for that delivery was accompanied by written instructions that it was made to enable the State Bank to forward and collect the paper; and accordingly, as between the State Bank and the Bank and the indorsers, it had no title whatever to the paper beyond the duty and obligation to collect it and return the proceeds to the parties from whom it had been received, or plaintiff as their assignee. That by the indorsement and the let ters of instruction accompanying the paper when sent to it, defend- | ant was apprised of the fact that it was so sent for collection merely, and from this information it was to be inferred by defendant that the State Bank was acting in behalf of some other party in the collection of the paper for that party, and defendant undertook the performance of the same duty with knowledge of the existence. of that fact. That defendant's relation to this paper was, therefore, merely that of collection agent; and in this state of the facts defendant had no legal right to hold the paper for its security on account of the general balance of its accounts against the State Bank. 23 N. Y., 289; 26 id., 450; 47 id., 439; 1 Keyes, 321. That what it was legally bound to do, as the State Bank had failed and discontinued its business, was to return the paper to its owners; and as it failed to do that when a proper Judgment affirmed. Opinion by Daniels, J.; Brady and Macomber, JJ., concur. Porasten 338 103 my 636 PRACTICE. ADVERSE POSSESSION. N. Y. COURT OF APPEALS. Paige, respt., v. Waring et al., exrs., applts. Decided Oct. 5, 1886. Where the evidence has been submitted to the jury under proper instructions the verdict will be regarded as conclusive so far as there is any evidence upon which it can be based. |