and certain as to the commencement of his action by stating how and when said action was commenced-if by summons, upon whom, and if otherwise, in what manner. The Court made an order referring it to a referee to take proof and ascertain how and when Stephen's action was begun, and to report to the Court, the motion to stand over until his report came in.

Griswold & Crowell and W. H. Gibson, for applts.

J. I. & F. Werner, for respt. Held, Error. A motion to make an answer more definite and certain needs only an examination of the answer. No reference is needed or proper for the purpose of taking proof of facts. The answer avers another action pending before this one was commenced. If the learned justice thought that good pleading required a statement of the time when such prior action was commenced, he could have so ordered without any reference.

Order of reference reversed, with $10 costs and printing disbursements, and motion denied, with $10 costs.

Mem. by Learned, P. J.

STOCKHOLDERS.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

O. P. C. Billings, rec'r, applt., v. George C. Robinson, respt.

Decided Oct. 27, 1882.

It is one of the purposes of the act authorizing the formation of manufacturing corporations to permit the shareholders to terminate their membership in the corporaVOL. 15.-No. 22b.

tion before the company should call in its entire capital stock, and thus to relieve themselves from the liability of paying future calls by selling and transferring their shares in accordance with the method prescribed by the statute; provided such transfer is an honest one, entered into in entire good faith, with the intent and purpose of disposing of the entire interest of the shareholder in his shares and of surrendering all dominion over them, and such a transfer relieves the assignor from liability for future calls upon the stock.

When certificates of stock are issued to a subscriber to the capital stock of a manufacturing corporation who has not paid his full subscription, his liability upon his contract of subscription to pay the balance due is merged in his liability as stockholder to pay such balance due on the stock held by him, and a bona fide transfer of the stock on the books of the company releases the stockholder from liability on the subscription agreement.

Appeal from judgment, entered on report of referee, dismissing the complaint.

The defendant subscribed for 50 shares of the capital stock of the Marshall Packing Company, a manufacturing corporation of this State, which shares were afterward issued to him before he had paid the full amount of his subscription, and he received a certificate for the same. Besides these shares he also acquired 50 other shares.

This action was brought to recover the unpaid balance due upon the latter shares held by him, and also the balance due upon his contract of subscription.

The defence set up was that before this balance was called by the company the defendant had transferred his shares of stock in good faith and had complied with all the requirements of the statute regulating such transfers.

the complaint.

was a direct and affirmative promise that he would pay for the stock

L. H. Arnold, Jr., for respt. Held, That it was one of the purposes of the act authorizing the formation of manufacturing corporations to permit the shareholders to terminate their membership in the corporation before the company should call in its entire capital stock and thus to relieve themselves from the liability of paying any future calls by selling and transferring their shares in accordance with the method prescribed by the statute.

That although the provisions of the statute regulating the transfers of shares have been literally complied with, yet if the transfer is not an honest one, entered into in entire good faith with the intent and purpose of disposing of the entire interest of the shareholder in the shares, and of surrendering all dominion over them, it will not relieve him of his liability to pay the balance due on his shares.

That since it appeared from the evidence that the defendant had transferred his stock in good faith and had complied with the requirements of the statute, he was relieved from liability to pay future calls. 2 Barb., 294; 25 Barb., 413; 52 Barb., 168; 52 N. Y., 217; 49 N. Y., 216; 18 Hun, 571.

that his liability upon this promise was not extinguished by the transfer.

Held, That when stock certificates have been delivered to a subscriber for the stock of a manufacturing corporation, as was done in this case, he becomes a member of the company entitled to all the rights and privileges incident to that relation, and the original promise is merged in the new obligation, which, as was held above, can be extinguished by a proper transfer of the stock.

Judgment affirmed.

Opinion by Barker, J.; Brady, J., concurs.

Daniels, J., dissents on the ground that the promise of defendant to pay for the shares contained in his subscription was binding upon him and could not be abrogated by a transfer of the shares.

NEGLIGENCE. DAMAGES. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

William A. Houghkirk, adm'r, respt., v. The Delaware & Hudson Canal Co., applt.

Decided Nov., 1882.

A child, aged about six, her father being a gardener, and so far as appears having no property, was killed by an engine of defendant. There was no proof of special pecuniary damages. A verdict of $5,000 was rendered. Held, That the damages

were not excessive.

children of tender years, the General Term has practically no power to review the question of excessive damages.

The action was brought by plaintiff, as administrator, to recover damages for plaintiff's negligence. The only child of plaintiff, a little girl aged about six, was killed by an engine of defendant. The occupation of the father was that of a gardener. It does not appear that he had any property. The jury gave a verdict for $5,000.

Henry Smith, for applt.

Parker & Countryman, for respt. Held, That the verdict must be sustained. The only question argued is that of excessive damages. In Ihl v. Forty-second St. RR. Co., 47 N. Y., 317, a recovery of $1,800 was had by the administrator of a child three years old. The Court say, in effect, that there may be a recovery without proof of special pecuniary damages. That generally it would be impossible to make proof of specific loss occasioned by the death of a child of such tender years. That it cannot be said as matter of law that there is no pecuniary damage or that the expense of maintenance would exceed the pecuniary advantages to be derived from services. That these calculations are for the jury and that any evidence on the subject, beyond the age and sex of the child, the circumstances and condition of the parents or other facts existing at the time of the death or trial, would be speculative and hypothetical and would not aid a jury in coming to a conclusion.

This seems to be a distinct declaration that the question of dam

ages is for the jury and is to be decided on the evidence lastly mentioned above. We do not see how we can exercise any judgment on the question of excessive damages. There can be very rarely proof of specific loss. Proof that the expenses of maintenance would probably exceed the value of services belongs to that class of evidence which the Court of Appeals declares speculative and not proper. If the damages are to be measured only by the age and sex of the child the circumstances and condition of the parents, and other facts existing at the time of trial, we do not see how it is possible to say that they are excessive. On these facts the jury can form an opinion as well as we can. The views of the leading case seem to be supported in 14 N. Y., 310; 38 N. Y., 445; 67 N. Y., 417.

If there was proof of what such a child could earn during minority or even afterwards, and what was the cost of her maintenance, we could see whether the jury had been governed by the evidence. But it was said in O'Mara v. Hudson R. RR. Co., 38 N. Y., 445, that the jury, acting on their own knowledge and without proof, can estimate the pecuniary loss. If that be so, then the knowledge of this jury may have satisfied them that the damages were the amount named in the verdict.

Judgment affirmed, with costs.

Opinion by Learned, P. J.; Bockes, J., concurs, on the authority of the cases in the Court of Appeals, but says it is practically an utter surrender of the right of

the General Term to set aside verdicts for excessive damages in this class of cases.

SAVINGS BANKS.

N. Y. SUPREME COURT. GENERAL
TERM. THIRD DEPT.
The People v. The Mechanics'
& Traders' Savings Institution.

Decided Nov., 1882.

The assets of a savings bank belong to the depositors and, on its dissolution, each is entitled only to his pro rata share, after payment of the necessary expenses. Hence, an expense of administration, incurred before the appointment of a receiver, is entitled to payment in full from the fund. Defendant was organized under a special Act. Ch. 368 of 1852. Sec. 6 of that Act states its business to be to receive moneys on deposit for the purpose of being invested in Government securities; the rate of interest to be so regulated that the depositors may receive, as nearly as may be, a ratable proportion of all the profits after deducting the necessary expenses. There was no capital. A broker, one Sistare, sold stocks for defendant in 1872, on which sale defendant became liable to him. commenced an action in 1875, which is now pending, when in 1877 a receiver of defendant was appointed, Mr. Best. The latter was substituted as defendant, the action tried, and finally decided in the Court of Appeals. Mr. Sistare has a judgment of April 18, 1879, for $6,874.13, and two subsequent judgments for costs. He made application to the Court to be paid in preference to the depositors.

He

This motion was granted as to his costs and expenses, but denied as to the damages, He appeals.

Henry F. Bennett, for applt. A. J. Vanderpoel, for rec'r, respt.

L. W. Russell, Att'y-Gen., for the people, respt.

Held, That Sistare was entitled to the full claim in preference to the depositors. The property of a savings bank belongs to the depositors. On its dissolution they are entitled to what it honestly owns, but to nothing more. The charter of this corporation says (and the law would be so even if this were not expressed) that the depositor shall receive his pro rata after deducting necessary penses.

ex

We are cited to Sec. 90, Art. 3, Tit. 4, Ch. 8, part 3, Rev. Stat. But that relates to voluntary dissolution and applies to stock corporations. There does not seem to be any statute cited which specifies the order in which a receiver of a corporation, not stock, shall make distribution. The case, 1 Paige, 249, was that of a bank of issue and deposit. In such a bank depositors are merely creditors, and the stockholders are the persons who get the profits and bear the losses. . In a savings bank the depositors are like the stock holders in a bank of issue and deposit. 96 U. S., 388. The case, 78 N. Y., 122, is cited to show that in a mutual life insurance company policy holders are not partners, but creditors. But many so-called mutual life insurance companies are in fact stock companies. This was so