RAILROAD COMPANIES. to be made somewhat with referFARM CROSSINGS. ence to the needs, necessities and

convenience of the owner of the N. Y. COURT OF APPEALS.

farm, and he is entitled to be Jones, respt., v. Seligman et al., reasonably and fairly accommotrustees, applts.

dated. The circumstances are to

be considered, and the crossings Decided June 1, 1880.

should be located in view of all the An equitable action may be maintained by one surroundings and according to the

through whose farm a railroad runs against situation of the adjacent land. The the acting trustees of the road to compel the railroad corporation, in the exercise erection of fences and the building of a farm crossing.

of its duty in providing farm crossThe railroad corporation, in the exercise of its ings, is not vested with any such

duty in providing farm crossings, is not absolute discretion or arbitrary vested with such absolute discretion or arbi- power that their decision is final trary power that their decision is final and and conclusive and cannot be reconclusive and cannot be reviewed or dis

viewed or disturbed. 51 N. Y.,568 ; turbed. The fact that the damages awarded for con

18 Barb., 350 ; 12 id., 227. demnation of land have been paid does not It appeared that proceedings had necessarily preclude the party to wbom the been taken to condemn the land of payment was made from maintaining an plaintiff used by the railroad, and action to compel the corporation to provide that the damages fixed thereon had suitable and proper crossings, if it has failed

been paid. to do so. Affirning 8, C., 7 W. Dig., 354.

Held, That this did not neces

sarily preclude plaintiff from mainThis action was brought against taining an action to compel the cordefendants, as acting trustees of the poration to provide suitable and N. Y., Boston & Montreal RR. Co., proper crossings in case it had to compel them to build and main- failed to fulfil the duty imposed tain fences along so much of the upon it by law. 63 N. Y. 58. track of said road as ran through The defendants, as trustees, have plaintiff's farm, and to build a farm power, by the mortgage executed to crossing under said track.

them, to make such reparation of John M. Whiting, for applts. and such additions to the railroad or C. B. Herrick, for respt.

its branches as they may deem expeHeld, That plaintiff was entitled dient. They have taken possession to maintain an equitable action for and completed the road over plainthe relief sought. The propriety of tiff's land. having additional crossings, as well Held, That they had as the condition of the other cross-erect and maintain fences, and to ing already built, and their con- provide crossings, and were oblivenience was a question of fact for gated to protect the road and reprethe decision of the judge upon the sent those who have an interest in trial.

the corporation. The location of such a crossing is Judgment of General Term, af

power to

firming judgment for plaintiff, af- had made an estimate of what it firmed.

would cost and had laid an assessOpinion by Miller, J. All concur. ment therefor.

John J. Townsend, for applt.

Hugh L. Cole, for respt.

Held, untenable ; that the city

had power to determine to grade a N. Y. COURT OF APPEALS.

street, or do a public work of that In re petition of Roberts to vacate kind, and to execute the work at its certain assessments.

own expense, and after it was done

to assess the costs and charges and Decided June 1, 1880.

collect the same as in the case of an The City of New York has power to determine estimate and assessment before the

to grade a street, or do a public work of that work was begun. 8 N. Y., 120. And kind, at its own expense, and after it is done the board of revision and correction to assess the expense and collect it the same as in the case of an estimate and assessment

has jurisdiction to confirm such an before the work is begun, and the board of estimate and assessment of the revision has jurisdiction to confirm such an board of assessors. estinate and assessment.

Also held, That, in the absence of The petitioner sought to have allegation and proof, it must be asvacated certain assessments upon sumed that the act of the Common property belonging to him in the Council in ordering the work to be City of New York. The assessments done was with legislative prevision, in question were laid under the fol- and that the legislative judgment lowing circumstances. It appeared was that the benefit would be as that the Common Council passed an great as the cost. ordinance for regulating and grad

The board of revision and coring Eighty-second street, which re-rection does not tax; it simply fixes cited that it was deemed necessary the amount of tax to be paid for for speed in execution of it that the each piece of property. work should be done at the expense

Order of General Term, affirming of the city, but on account of the order refusing to vacate assessment, persons on whom the same should affirmed. be assessed, and it was, therefore, Opinion by Folger, Ch. J. All enacted that the board of assessors concur, Miller, J., in result. make an assessment thereof on the owners of property in proportion to

CONTRACTS AGAINST PUBthe advantages acquired from the

LIC POLICY. work. The petitioner claimed that the board of assessors had no

N. Y. COURT OF APPEALS. authority by law to make an assess

Barnes, applt, v. Brown et al., ment in such case, and that the

respts. illegality of the exercise of this power consisted in the doing of the Decided April 6, 1880. work by the city before the assessors Plaintiff, after becoming director and president

of a railroad company, purchased of B. & S. shares which had been issued he an interest in a construction contract there owned sixty, which were of great tofore made with said company.

Subsequently plaintiff entered into a contract with value. On March 26, 1872, plaintiff B. & S., by which he agreed to assign to entered into a contract, in writing, them all his claims against the company, his with defendants B. & S., whereby, stock therein, and his interest in the con- in consideration of the assignment tract, and to resign as director, and to induce

and transfer of all his claims against the other directors to resign, and B. & S. agreed to pay him his claims against the the corporation, and his stock company, and to deliver to him 2,000 shares therein and his interest in the conof full-paid capital stock of the company. struction contract, they agreed to Plaintiff performed on his part, and B. & S. paid the claims and delivered the stock, pay him $27,500, and cause to be which was afterwards discovered not to be delivered to him two thousand full-paid stock. In an action for fraud, after shares of the full-paid capital stock showing these facts, plaintiff offered to show of

the company

At the time that the stock was issued without any valid of entering into this contract, B. & consideration, and for the purpose of carrying out the contract. Held, That plaintiff had a

S. represented to plaintiff that, cause of action; that the evidence offered to enable them to carry out the was material; that, nothing having been terms of the contract on their part, done under the construction contract, and plaintiff must resign the presidency, plaintiff's interest in it not having come in con

and that he and other directors flict with his duty as trustee, it could not be declared void as against public policy; it should resign, as directors, to make was, at most, voidable at the election of the room for B. & S., and such other corporation or its stockholders, and plaintiff person as they desired to associate having assigned his interest before any per with them, and they requested formance of the contract was attempted, and before objection was made to his connection plaintiff to resign, and to use his in with it, and his assignees being competent fluence to cause the other directors to take, the assignment of it was valid. to resign ; that plaintiff thereafter re

This action was brought to re-signed, and caused the others to do cover damages for an alleged fraud. so, and other persons, nominated by It appeared that, in March, 1872, B. & S., were chosen to fill the plaintiff was a director and presi- places thus made vacant. Defenddent of “The New York City Central ants B. & S. thereafter paid plaintiff Underground Railway Company,” $27,500, and delivered him a certia corporation organized under the ficate of stock purporting to reprelaws of this state ; that, before he sent two thousand shares, reprebecame an officer thereof, the com- senting that such stock was fullpany had made a contract with one paid stock, and plaintiff believed it B. to build and equip its railway, was until in August, 1874, he learned and, after plaintiff became such di- it was not, but had been unlawfully rector and president, he purchased issued without authority, and was an interest in such contract, to the fraudulent and worthless, as deextent of forty-five per cent. thereof, fendants knew, and that they prowhich was of great value. The com-cured it to be issued while acting as pany owed plaintiff $27,500, and of directors of the company, for the the one hundred and seventeen purpose of discharging the obligation of B. & S. to plaintiff. The was against public policy, and the defendants answered separately. contract based thereon was void. There was no fraud claimed on the After some further evidence plaintiff part of plaintiff, and no claim that rested, and a nonsuit was granted his contract with B. & S. was with on the grounds that the contract out adequate consideration, or for under which the plaintiff claimed any reason invalid Upon the trial, to have acquired an interest in the plaintiff gave evidence, showing the construction contract was void, he making of the contract with B. & S., being at the time an officer of the and the full performance of it on his company, and his contract with B. part, the resignation and change of & S. was void, because the assigndirectors, the payment to him of ment of such interest was contrary $27,500, and the delivery of two to public policy, and plaintiff's thousand shares of stock, with the agreement with B. & S., being withrepresentation that it was full-paid out the consent of all the stockstock. He also showed, by the holders, was void as contrary to pubminutes of the meeting of defend- lic policy. ants as directors, how they issued Hugh L. Cole, for applt. the stock, and that it was issued to John N. Barnes, for respts. several of the defendants, one of Held, That upon the facts proved whom was defendant B., ostensibly and offered to be proved, plaintiff for money advanced and services had a cause of action against derendered the company, and that the fendants. He was entitled to have other defendants transferred their the two thousand shares of full-paid stock to B., who transferred all the stock, having fully performed the shares to plaintiff. It also appeared contract on his part. This obligain the pleadings that B. & S. and the tion could not be discharged by deother defendants were interested in livering to him worthless, spurious a connected line of railroads, and stock, wrongfully issued by the corthat they desired to obtain control poration, without any consideration of this company to secure a suitable received therefor. It could not be entry into the City of New York. claimed that the corporation or its After these facts were shown, plain- directors could create any valid tiff offered to show that the stock stock by issuing it without any conwas issued without any valid con- sideration; the directors assuming sideration of payment, and to be de- to issue stock in that way would livered to plaintiff under the con- perpetrate a wrong upon the cortract. This was objected to and ex- poration and its stockholders, and a cluded on the ground that plain- fraud upon every person who took tiff's interest in the construction such stock as full-paid stock, relying contract was acquired in a manner upon the appearances. 13 N. Y., that was against public policy and 599; 36 id, 200; 62 id., 319; 38 void, and that the agreement by Barb., 445. which the directors were to be

The evidence offered by plaintiff changed in the interest of B. & S. and excluded was material, and hav

ing been excluded on grounds fatal v. The Nat. Bank of Fishkill et al., to any recovery, plaintiff was not applls. required to give any further evi

Decided Feb. 24, 1880. dence, and was excused from giving any proof as to his damages. It One B., who was plaintiff's treasurer, and

cashier of the defendant bank, possessed himwas sufficient that the case was such

self of bonds belonging to plaintiff, and as that plaintiff could have sustained pledged them, as cashier, to secure advances substantial damage from the fraud to be made to defendant. They were subsealleged.

quently sold under the conditions of the

pledge, and the proceeds placed to the credit Nothing having been done under

of the defendant. Held, That the facts authe construction contract, and plain- thorized a finding of a conversion of the tiff's interest under it not having bonds by the bank; that the ignorance of come in conflict with his duty as

the directors did not affect the liability of

the bank; that an action in tort was proper, trustee, it could not be declared

and that a counterclaim was not allowvoid as against public policy, and able. the assignment of an interest in it A principal is liable for a wrong of his to plaintiff did not render it void; it agent, committed in the course of his emwas, at most, simply voidable at the ployment, and for the benefit of the prinelection of the corporation or its

cipal, although no express command or

privity is proven. stockholders, and plaintiff having assigned his interest in the con- This action was brought to restruction contract before any per- cover the value of certain bonds formance of it was attempted, and alleged to have been converted by before any objection was made by the National Bank of Fishkill, of the corporation or any of its stock- which bank defendant B. is the reholders to his connection with it, ceiver. In March, 1874, plaintiff and B. & S., his assignees, being owned the bonds in question. One competent to take it, the assignment B. was plaintiff's treasurer, and was of it was valid.

also cashier of defendant, the NaAlso held, That no policy of law tional Bank of Fishkill, and was its was violated by plaintiff in selling managiug officer and its general out his controlling interest in the agent in its business. As such, he corporation to B. & S.

contracted debts and borrowed Judgment of General Term, af- money during a series of years, firming judgment of nonsuit, re- with the knowledge, consent, and versed, and new trial ordered.

approbation of its directors. In Opinion by Earl, J.; Church, Ch. March or April, 1874, B. possessed J., Rapallo and Danforth, JJ., con- himself of the bonds, and in the cur; Folger and Miller, JJ., dissent; name of, and as cashier, of the Andrews, J., absent.

National Bank of Fishkill, pledged

them with its correspondent in New CONVERSION. PRINCIPAL

York, the Mer. Ex. Nat. Bank, as AND AGENT.

collateral for advances made, and to N. Y. COURT OF APPEALS.

be made, to the National Bank of The Fishkill Savings Inst., respt., Fishkill. Upon the faith of this

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