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that no report was filed in January, 1875, Held, that W. was not liable, as he was not a trustee at the time of the default. When a trustee resigns as such it is not necessary for him to give notice of his intention to the public, or to any one but his associates. The property of the corporation was sold on execution in December, 1874, and no business was thereafter done. Held, that it was tically dissolved before the time when a report could be required under the statute.

prac

W. never, after September 7th, acted as trustee.

Wm. H. Arnoux, for applts. George G. De Witt and Elbridge T. Gerry, for respts.

Held, That the complaint should have been dismissed as to defendant W., as he was not a trustee of the corporation at the time of the alleged default.

Also held, that it was not necessary that the reasons for his withdrawal should be presented, nor were his motives or intentions to be inquired into upon the trial. It was not necessary for him to give notice to the public, plaintiffs or any other persons than his associates of his intention to resign, or of his resignation.

The liability of such a trustee does not depend upon the fact that he was such when the debt was contracted, but upon his being a trustee when the default as to filing the report occurred. Laws 1848, chap. 40, § 12; 17 N. Y., 458; 21 id., 261. The certificate of the corporation

This action was brought to recover from defendants, as trustees of the New York Republican Newspaper Association, a corporation organized under the Manufacturing Act of 1848 (chap. 40), the amount of a debt incurred by said corporation prior to an omission by defendants to file the annual report of its condition required by said act. It appeared that the enterprise was originated by defendant N, who did not appeal. Defendants P. and W. consented upon certain conditions to be trustees with N., and the three signed the certificate of incorporation. on or before August 6, 1874, which called for $500,000 of stock, but was duly filed August 7th. Neither P. nor W. were stockholders, or subscribed to the capital stock. On September 7, 1874, W. wrote to N. and P., resigning as trustee because he was not a stockholder. On October 1st, at the first meeting of the trustees, W.'s resignation was presented and accepted. One G. consented to take the office, and, as the minutes showed, he was made a trustee in the place of W., and attended the meetings of the board, as trustee, on the 8th and 12th of October, and 18th of November, which, so far as appeared, was the last held by the board or any portion of it.

only $40,000 was taken. Neither W. nor P. had any of it. The first number of the paper was issued on October 5th, and it stopped December 14, 1874. The entire property of the association was sold upon execution in December, 1874. Plaintiffs obtained a judgment on their claim January 9, 1875. No business was done by the company after December 14, 1874.

Held, That the company was for every practical purpose dissolved before the time when, by statute, a report could be required. 17 N. Y., 93; 19 Johns., 456; 20 id., 668; Hopk., 300; 62 N.Y., 208; 17 N.Y.,

458; 74 id., 621; 9 W. Dig., 443; gages, executed by the Woolen Co. 10 id., 2; 7 Johns. Ch., 217.

Judgment of General Term, affirming judgment on verdict for plaintiffs, so far as appealed from, reversed and new trial granted.

Opinion by Danforth, J. All con

cur.

CHATTEL MORTGAGE. LIENS.

N. Y. COURT OF APPEALS.

upon the machinery. Defendant is in possession of the machinery, and plaintiff has demanded it. It appeared that I. & A. F. & Co. defendant's assignors, supplied the machinery to the Woolen Co., under an agreement that it was to be paid for at certain specified periods, such payments to be secured by notes of the Company, and a chattel mortgage to each of said parties upon the

Coman, rec'r, respt., v. Lakey, property sold. The transaction was

applt.

consummated by the delivery of the Decided March 19, 1880. notes, and the execution and delivDefendant's assignors sold certain machinery ery of the mortgages. Defendant, to a corporation under an agreement by in March, 1872, became the purwhich it was to be paid for at certain speci- chaser, upon a foreclosure sale, of fied periods, such payments to be secured by the real estate in which the manotes and chattel mortgages. The notes

and mortgages were accordingly delivered. Defendant afterwards took possession. In an action to recover possession, brought by the receiver of one who had purchased at

an execution sale, it was claimed that the mortgages were void under the Act of 1848, prohibiting the mortgaging of their property by corporations. Held, that the transaction must be construed as a whole, and was in effect a conditional sale; that the rights of the vendors did not depend on the act of the

corporation in creating a lien, but upon their own act, and are secured by the rule protecting equitable liens of vendors, which the

courts will enforce. Reversing S. C., 7 W. Dig., 161.

chinery was situated, and entered into possession of the same, and of the personal property. On February 15, 1872, plaintiff recovered a judgment against the Woolen Co., and issued and delivered an execution to the sheriff, who made a levy upon the machinery and sold it subject to all prior liens and incumbrances. Plaintiff claimed that that the mortgages were void, under the statute prohibiting corporations created under the general manufacturing act (Laws 1848, chap. 40), This was a contest between the of which the Woolen Co. was one, creditors of the A. B. Woolen Co., from mortgaging or creating any over the title to a quantity of lien upon their property. Section machinery in a woolen mill. Plain- 25 of said act empowers such cortiff was a receiver, appointed in porations to purchase, hold and supplementary proceedings, of one convey real and personal estate P., who was a purchaser of the necessary to enable the carrying on machinery on an execution sale of their business, but prohibits the upon a judgment in his favor mortgaging of the same, or giving against said company. Defendant any lien thereon. Chapter 517, of claimed to own the machinery, as Laws of 1854, authorizes corporaassignee of certain chattel mort- tions to mortgage their real estate,

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ordered.

with the consent of their stock- firming judgment for plaintiff, reholders owning two-thirds of the versed, and judgment for defendant capital stock, and by Chapter 481, of Laws of 1871, this modification was extended so as to include personal estate. The mortgages in question were executed before the amendments to the original act were passed.

W. F. Cogswell, for applt. Nathaniel Foote, for respt. Held, That the transaction must be construed as a whole, and all the papers must be read together, and it was, in effect, a sale upon condition of payment of the purchaseprice within a specified period. 15 Johns., 458; 59 N. Y., 541; that the rights of the vendors are secured by a law higher than and independent of the statute; they grow out of the transaction itself, and are not entirely dependent upon the act of the corporation in creating a lien, but arose from the acts of the vendors in transferring the property subject to the payment of the purchase-money, and are secured by the rule which protects equitable liens of vendors, and which courts will enforce to effectuate the real intent of the parties, and require them to do whatever is necessary to conform their acts to the essential nature of the transaction. 69 N. Y., 328.

This action could only be maintained by holding that the plaintiff has the legal title to the property, and that defendant has no legal or equitable interest therein. 24 N. J. Eq., 13-17.

Opinion by Church, Ch. J.; Miller, Earl and Danforth, JJ., concur; Folger, Rapallo and Andrews, JJ., not voting.

PERSONAL INJURIES. N. Y. COURT OF APPEALS. Clifford, respt., v. Dam et al,

applts.

Decided April 20, 1880.

In an action to recover damages received in falling through a coal hole in front of defendants' premises, it is not necessary for plaintiff to prove negligence on defendants' part, or a want of contributory negligence. Plaintiff is only bound, in the first instance, to prove the existence of the hole and that he fell into it in passing along the sidewalk. If there is any justification, it is incumbent on defendants to allege and prove it.

If a permit to construct vaults under the side

walk is material in such a case, its only effect would be to mitigate the act from an absolute nuisance to one involving care in the construction and maintenance, and to justify such a structure, the permit must not only be pleaded, but compliance with its terms, and that the structure was properly made and maintained to secure an equal measure of safety that the sidewalk would without it must be alleged and proven.

This action was brought to recover damages for injuries received by plaintiff in falling through a coal hole in the sidewalk in front of defendants' hotel in New York. Upon the trial, defendants' counsel asked a witness whether he recollected obtaining any privilege to put vaults under the sidewalk in front of the hotel. This was objected to, on the ground that no license had been

Cox v. Gould, 4 Blatch., 341, dis- pleaded, and as immaterial and tinguished.

irrelevant. Defendants then offered

Judgment of General Term, af- to show that the usual permit had

Vol. 10.-No. 7.*

been obtained from the proper au- responsible, and that in passing thorities. The witness stated that the along the sidewalk he fell into it. permit was in writing, and it was. It was not necessary for him to then objected that it should be pro- prove a want of contributory negliduced. The Court then said: "I ex-gence. If there was any justification, clude the proposed evidence."

W. C. Moak, for applts.

Samuel Hand, for respt.

Held, It is fair to assume that the court intended to reject the evidence as incompetent because not pleaded, or as immaterial.

it was incumbent on defendants to allege and prove it. The public have a right to assume that such structures are as safe as any other part of the sidewalk.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Church, Ch. J. All concur, Folger and Earl J.J., in result, except Miller, J., absent.

TAXATION.

NATIONAL

BANKS.

N. Y. COURT OF APPEALS.

The public are entitled to an unobstructed passage upon the streets, including the sidewalks of a city. It was sufficient for plaintiff to prove that in passing along the sidewalk he was injured by this structure, which was appurtenant to defendants' premises. It was not necessary to prove negligence. If a permit was material, the effect of it would The People ex rel. Van Nest, only be to mitigate the act from an applt., v. The Comrs. of Taxes, &c., absolute nuisance to an act invol- of the City and County of N. Y., ving care in the construction and maintenance, and to justify such a structure, it would be necessary not only to plead it, but also to allege and prove compliance with its terms, and that the structure was properly made and maintained to secure an equal measure of safety that the sidewalk would without it.

When permission is given by a municipal authority to interfere with a street solely for private use, the persons so obtaining such permission must see to it that the street is restored to its original safety and usefulness.

respts.

A

Decided April 6, 1880.

National Bank held its lot under a lease for twenty-one years, with an option for the lessor to renew for a similar term or pay for the building. It had erected a building thereon at a cost of $65,000, and the property had been assessed as real estate at $70,000. Held, That the property was held by the bank as real estate to the extent of the assessed value of the building, and that this alone should be deducted from the stock. Such assessed value cannot be more than the amount invested, and may be less, as the cost is not the criterion of assessed value.

This was a proceeding to revise and correct an assessment made Plaintiff was not bound to prove, upon the stock of the New York in the first instance, anything, ex- National Exchange Bank. The recept the existence of a hole in the lator was a stockholder of said bank. sidewalk, for which defendants were It appeared that the bank held a

lot under a lease from Trinity Church of twenty-one years, with an option, at the expiration of that term, for the lessor to pay for the building or renew the lease for a further term of twenty-one years,

BAR.

N. Y. COURT OF APPEALS.

Brown, applt., v. Gallaudet, respt.
Decided April 6, 1880.

and if renewed, the lessee, at the In an action brought by defendant against expiration of the term, had the right to remove the building. It appeared that the bank had erected a building upon this lot at an expense of $65,000, and invested that amount of its capital therein. The property was assessed to the bank as real estate at the sum of $70,000. In assessing the stock of the bank no deduction of the value of the real estate was made.

Michael Canfield, for applt.
Wm. C. Whitney, for respts.

plaintiff for money loaned, the complaint gave plaintiff credit for moneys collected by defendant as agent, and claimed judgment only for the balance. The answer contained no counterclaim, but consisted solely of a general denial. In an action to recover the aforesaid moneys collected by defendant as agent, Held, that the judgment in the former action was not a technical bar to this; that plaintiff was not bound in the former action to set up this claim in his answer, nor to avail himself of the credit given by the complaint, but had a right to reserve it for a cross action.

This action was brought to recover various sums of money Held, error; that the property amounting in the aggregate to about was held by the bank, and as such $2,000, alleged to have been collecwas taxable as real estate to the ed by G., defendant, as the broker extent of the assessed value of the or agent of B., plaintiff, in 1866, '67 building; that this alone should be and '68, and also certain securideducted from the stock. It does ties received by G. as B.'s agent not follow that such assessed value on loans made by him to third paris the cost of the building. It can- ties. The referee found for plainnot be more, because no more than tiff, and a judgment was entered for that amount was invested, and it $3,649.82 for the money demand may be less, because the cost is not and interest thereon, and also for the criterion of assessed value. 46 the delivery of the securities claimN. Y., 46. ed. The General Term modified Judgment of General Term, af- the judgment by reversing the refirming order of Special Term dis- covery on the money demand, and missing application, reversed, and affirming that of the securities. The proceedings remitted for a modifica- opinion of the General Term showed tion of assessment. that the modification was made on Opinion by Church, Ch. J. All the ground that in a former action concur, except Folger, J.

brought by G. against B. to recover money alleged to have been loaned by the former to the latter, and expenses paid and incurred therein, B. had been credited with the sums

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