Sections 27, of title 19, of chap. 863, of the Laws of 1873, provides that the City of Brooklyn shall not be liable in damages for any misfeasance, or nonfeasance of the Common Council, or any officer of the city, or appointee of the Common Council, of any duty imposed upon them, but that the remedy shall be by mandamus or other proceeding or action, to compel the performance of the duty, or by other action against the members of the Common Council, &c.

Held, That this section does not exempt the city from liability to discharge a duty resting upon it, and which it has not devolved upon any one of its officers.

Grey v. City of Brooklyn, 2 Abb. Ct. of App. Dec., 267, explained.

Judgment of General Term, affirming judgment dismissing complaint, affirmed.

Opinion by Earl, J. All concur, except Miller, J., dissenting.

ATTACHMENT. BANKS. N. Y. COURT OF APPEALS. Bills et al., applts., v. The National Park Bank, respt.

Decided June 6, 1882. Notwithstanding the certification of a check by a bank the debt evidenced by the check is liable to be attached in a suit against the depositor.

A railroad company which deposited with defendant gave a check for its balance of account to R., its assistant treasurer, and the same was certified. An attachment in an action by plaintiff against the railroad

company and afterwards drew the same on his individual checks. Defendant knew R.'s official position and had reason to believe that the securities deposited belonged to the company and that he intended to and did apply them to pay just debts of the company. Held, That defendant could not defend itself by showing payment of the check to one who to its knowledge did not hold it for value or in good faith but who in fact held it for the company.

This action was brought to recover money claimed to have been. attached in defendant's bank in a suit against one of its customers. The referee found that for more than six months prior to April 30, 1875, the N. O., St. L. & C. RR. Co. had a deposit account with defendant. During that time one R. was the assistant treasurer of the RR. Co. and its principal officer in New York City and made all its deposits and with its president signed all checks or drafts drawn against such deposits. Defendant knew of the official position of R., and prior to April 30, 1875, had had no dealings with him as a depositor except in his official and representative character. On April 27th the bank owed the RR. Co., on its deposit account, $6,485.33. On that day the RR. Co. drew a check to the order of R., as assistant treasurer, for $6,600, which defendant certified to be good and charged to the account of the RR. Co. and delivered to R. On April 30, 1875, B., one of the plaintiffs, commenced an action against the RR. Co. to recover $21,000. On that day an attachment was issued therein the other plaintiff, sheriff of the city

and county of New York, directing him to attach and keep all the property of the RR. Co. therein. At about 2:30 P. M. of the same day C. served said attachment upon defendant with proper notice. On the same day, about the close of banking hours, defendant informed R. that the attachment had been served. R. then opened an account with defendant in his own behalf and deposited to his individual credit the certified check, and other negotiable securities drawn to his order as assistant treasurer and being the property of the RR. Co., amounting to $55,000. Among these was one draft for $33,000 and one for $15,000 which had been forwarded to R. by the RR. Co. to pay coupons owing by it which fell due the next day, and the proceeds of these drafts were applied by R. for that purpose. R. soon after drew the amount deposited from the bank upon his individual checks. When the deposit was made by R. to his individual credit the bank had good reason to believe and did believe that the securities deposited by him belonged to the RR. Co., and that he intended to apply the credit thus obtained to pay lawful and just debts owing by the RR. Co. and did so apply the same. B. recovered judgment against the RR. Co., and the court. granted leave to bring this action under sections 677 and 678 of the Code of Civil Procedure.

George II. Adams, for applts. Francis C. Barlow, for respt. Held, That the certification did. not absolutely pay and discharge

the deposit account. It did so only sub modo, in the same way that a debt is paid by the promissory note of the debtor. Regarding the certified check as a negotiable security, yet the debt evidenced by such security was liable to be attached in a suit against the RR. Co. as its property, and could be attached by service of the attachment upon the bank in the manner in which this attachment was served. The fact that R. took the certified check to the bank and had it credited to himself did not vest the title of the credit in him. Defendant cannot defend itself now by showing payment of the check to one who to its knowledge did not hold it for value or in good faith, and who in fact held it for the RR. Co. and no other purpose. Drake on Attachments, §§ 573-592; 3 Conn., 27; Morris, 48; 2 G. Greene, 125; 10 Cal., 339.

Judgment of General Term, affirming judgment dismissing complaint, reversed and new trial granted.

Opinion by Earl, J. All con

their own account without plaintiffs' knowledge or consent. Held, That defendants having violated their contract, plaintiffs were entitled to rescind and also to recover the amount advanced for margin.

This action was brought to recover an amount claimed by plaintiffs to have been paid defendants| under an agreement by which defendants agreed to purchase and carry for the plaintiffs two lots of United States bonds. It appeared and was in substance found that defendants, instead of performing their contract of agency, purchased the bonds in question at prices stated and then charged them to plaintiffs at higher prices and reported the purchases as made for them at those enhanced prices. Relying upon this false statement, and in consideration of the agreement to carry the bonds purchased, plaintiffs paid the sum agreed upon as a margin. Defendants sold the goods for their own account, without the knowledge or consent of plaintiffs. Plaintiffs recovered for items of expenditure alleged to have been paid by defendants but which were not in fact paid, and the excess charged over the purchase price, with interest thereon, amounting to $713.77. The trial court refused to allow a recovery for the advance paid on the agreement to carry the stock.

Lewis Sanders, for applts.
Will Man, for respts.

Held, Error; that defendants. having violated the contract of agency entered into between them and plaintiffs, the latter had a right to rescind; that they being

VOL 15.-No. 8a.

also chargeable with a breach of the contract to carry the original bonds for plaintiffs, the latter were entitled to recover the amount so paid by them. 47 Barb., 374; 29 id., 315; 12 Johns., 274.

Capron v. Thompson, 86 N. Y., 418, and Gruman v. Smith, 81 id., 25, distinguished.

By defendants' rescission of the contract there was a total failure. of the consideration paid by plaintiffs for carrying the stock and became of no avail.

Judgment of General Term, affirming judgment of Special Term, reversed and new trial granted.

Opinion by Miller, J. Earl, Danforth and Finch, JJ., concur; Rapallo, J., concurs, but not in rule of damages; Andrews, Ch. J., and Tracy, J., take no part.

RAILROADS.

N. Y. COURT OF APPEALS. In re application of The L. S. & M. S. RR. Co., applt., to change route of The N. Y., L. E. & W. RR. Co., respt.

In re application of The N. Y., L. E. & W. RR. Co., applt., for appointment of comrs. to examine route of The N. Y., L. & W. RR. Co. in Erie Co., respt.

Decided June 30, 1882.

Commissioners appointed under § 22 of the General Railroad Act have no power to determine the grade or points at which the proposed route of a new company shall cross an existing road, but such power is vested in commissioners to be appointed under subd. 6 of § 28.

Nor can commissioners appointed under § 22 determine whether the proposed route runs

D. H. McMillan and John G. Milburn, for applts.

Franklin B. Locke, for respt.

Held, No error; that the points of crossing are not necessarily fixed by notice of the location of the new road and failure of a company owning the previously constructed road to object to such location in fifteen days. The general provisions in regard to the location of the road are not applicable to the manner of crossing and cannot deprive existing roads of any of the protection which the provisions in respect to the crossings afford them. 79 N. Y., 67. A commission appointed under § 28 may determine the line or lines, the grade or grades, points and manner of such crossing, and whether the crossing shall be beneath, at or above the existing grade, and upon the route designated on the map of the company

seeking the crossing required to be filed by § 22 of said act, as fully

as it would have had if the commission provided by § 22 had never been appointed.

It was also claimed that the commissioners erred in not adopting the route as proposed by the petitioners, because the route as located by the new company runs through grounds already appropriated by the petitioners for transfer, storage and depot pur

poses.

Held, That such a question cannot properly be determined by commissioners appointed under 22. If the new company has located its line over lands it cannot condemn for railroad purposes, a commission having the power to regulate the place and manner of crossing has ample authority to protect existing companies from such a violation of their rights.

On an appeal to this court from the determination of commissioners appointed under § 22 of the General Railroad Act as amended by chapter 560 of laws of 1871, to examine a proposed route, this court is necessarily limited to considering and determining questions of law. tions of law. As no change of route can be made by the commissioners without the concurrence of the engineer, if he does not concur it is not within the power of this court to determine that such a change should be made. The most the General Term or this court could do would be to send the report back where errors of law had been committed.

Orders of General Term, affirm

N. Y. COURT OF APPEALS.

The National Shoe & Leather B'k of N. Y., applt., v. The Mechanics' Nat'l B'k of Newark, N. J., respt., and two other cases.

Decided June 30, 1882.

As § 5242, U. S. R. S., prohibits an attachment against a monied association or its property before final judgment in any action in any State court, an amendment to an order vacating an attachment against an insolvent national bank, so as to show that the order was made on the ground that the Judge who granted the attachment had no jurisdiction or power in the premises would

be useless.

This was a motion to have the remittiturs in the above entitled actions recalled, in order that application might be made for such amendment to the orders vacating the attachments issued in said action as would show that they were made upon the ground that the Justice of the Supreme Court who granted the attachments had no power or jurisdiction in the premises. Upon the hearing of the appeal the question which such amendment would bring up was argued by both sides. It appeared from the papers presented that the defendant in the attachment proceedings was an insolvent corporation.

Allison & Shaw, for West Side

B'k.

E. W. Paige and Geo. C. Lay, for Shoe & L. B'k.

A. P. Whitehead, for deft. Held, That, as a corporation can act only in the mode and within the limitations prescribed by the law creating it, the same law may impose upon parties dealing with the corporation such restrictions. as the enacting power deems proper, in preserving, applying or subjecting its assets to the discharge of its obligation, and may, among other things, provide that any one or more of the usual remedies of creditors against a debtor shall in certain cases be withheld from them.

That as, under the provisions of Section 5242 of the U. S. R. S., "no attachment shall be issued against any monied association or its property before final judgment in any suit, action or proceeding in any State * court," the attachment was illegally issued, and the amendment, therefore, would be useless.

* *

The laws of our State not only render invalid any transfer of property or payment made, but any judgment confessed or lien created by a monied corporation when insolvent, or in contemplation of insolvency, with intent of giving any preference to any creditor. 1 R. S., 591, § 9. The object and spirit of this act is to secure equal distribution of the effects of a monied corporation among its creditors in case of insolvency. Section 5242 of the United States Revised Statutes