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Statement of case.

tion. They aggregated $5,731.12, exclusive of interest for more than ten years, and which exceeded $4,000. The award of damages was limited to $5,000, the amount specified in the undertaking, so that the defendants lose at least $5,000, over $4,000 of which is interest accumulated during eleven years of litigation over the question of damages.

There are no other objections to the report and order of confirmation that need be considered. None of them go to the merits, and none are well taken.

The order must be affirmed.

All concur.

Order affirmed.

73 382 114 206

73 382 133 430

CAROLINE E. MACKAY, Appellant, v. BENJAMIN B. LEWIS et al., Respondents.

Upon appeal to this court from an order granting a new trial, the appellant takes the risk, not only of the questions considered by the court below, but of every other exception appearing on the record; the respondent may sustain the order upon showing any legal error, whether noticed by the court below or not.

If such an appeal is considered here upon the merits, and the court determine that there was error upon the trial requiring an affirmance of the order, judgment absolute must be given against the appellant.

Where, however, a party has appealed under a mistake, and before a decision of the appeal asks permission to withdraw it, the court upon being satisfied that the proceeding was in good faith, will ordinarily give leave to dismiss the appeal on payment of costs.

(Argued April 16, 1878; decided April 23, 1878.)

MOTION by appellant to dismiss appeal from order granting a new trial.

C. N. Lawton, for motion.

H. W. Tener, contra.

Opinion per Curiam.

Per Curiam. Appeals from orders granting new trials are an innovation upon the practice heretofore existing, appeals and writs of error having been confined to final judgments or decrees.

There are but comparatively few cases in which the right of appeal from an order granting a new trial can safely be exercised. The appellant takes the risk not only of the questions considered by the court below, and upon which they have made the order, but of every other exception appearing upon the record, and every legal question that can be made by the respondent who may sustain his order upon showing any legal error whether noticed by the court below or not. Not unfrequently have appellants been brought face to face with insuperable objections to the judgment they sought to have restored by a reversal of the order granting a new trial, which they had overlooked, and the court below had not found it necessary to consider, and had final judgment against them, when by submitting to the order and going back to a new trial they might have succeeded. In other words the privilege of an appeal in the case mentioned has proved a trap to the unwary suitor, who for the luxury of an appeal, and upon the faith that the court had erred in the precise point passed upon, have thrown away a good cause of action. Suitors and their legal advisers, notwithstanding repeated cautions from this court, have been slow to learn the hazard of appeals of this character. If an appeal is considered by the court upon the merits, and this court comes to the conclusion that there was error upon the trial, and that the order should be affirmed upon any ground, the statute is imperative, and judgment absolute must be given against the appellant. We cannot relieve the party from his stipulation. But when a party has appealed under a mistake and before a decision of the appeal by the court, asks permission to withdraw it if the court is satisfied that the proceeding has been in good faith, leave is ordinarily given to dismiss the appeal on payment of costs.

The respondent in the appeal loses nothing by the favor

Statement of case.

granted to his adversary. He gets the full benefit of his order for a new trial which is all he asked or sought and is indemnified against costs in this court. It would be harsh to the appellant to refuse this leave merely because he has not fully appreciated the risks of this comparatively new practice. The appellant may well have thought that only the questions considered by the Supreme Court would be considered here. She would not be the first one that has been led to appeal acting upon that view. But whatever the views were, she now is desirous of dismissing her appeal, and proposes to indemnify the respondent, and we see no reason why leave should not be granted.

The motion to discontinue the appeal is therefore granted on payment of the costs of the appeal, and ten dollars cost of opposing the motion.

All concur.
Motion granted.

APPLETON STURGES as Administrator, etc., Appellant, v. JACOB H. VANDERBILT, Impleaded, etc., Respondent.

Upon the expiration of the term of the existence of a corporation as limited by its charter, it becomes extinct, no formal decree of dissolution is necessary, and a judgment thereafter rendered against it in an action then pending is void, unless the action be continued by order of the court as provided by the act of 1832 (chap. 295, Laws of 1832) to prevent the abatement of actions by or against corporations.

The provision of the statute of New Jersey (Laws of N. J., April 15, 1846, § 29), constituting the directors and managers of a corporation, trustees thereof upon its dissolution,does not continue its existence as cestui que trust, and render it capable of defending in its corporate name where the corporation has expired by the termination of the period for which it was created.

The mode of continuing an action against a foreign corporation after its dissolution is a matter of practice governed by the laws of this State. Where a director of a corporation sold out his stock and ceased thereafter to take any part in the management of its affairs, or in the meetings of its directors, held, that he was not bound to see that a successor was elected in his place or to tender a formal resignation; and that he was not responsible for the acts of those in its management at the time of

Statement of case.

its dissolution some five years after he thus severed his connection, although no successors to the directors then in office were ever elected.

As to whether the acts of those who were directors of a corporation at the time of its dissolution, in thereafter defending an action then pending against the corporation, will estop them from questioning the validity of the corporation, quære.

An action in the nature of a creditor's suit cannot be maintained by a creditor of an extinct corporation, to reach funds of the corporation paid out to stockholders before dissolution, without a valid judgment and execution against the corporation or its successors, or without first exhausting the creditor's remedies against the property remaining in the hands of the corporation or received by its trustees on its dissolution.

(Argued March 22, 1878; decided April 23, 1878.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, reversing as to defendant Vanderbilt a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 11 Hun, 136.)

The nature of the action and the facts are set forth sufficiently in the opinion.

William Allen Butler, for appellant. The expiration of the charter did not prevent defendants from continuing to defend the pending suit of Russell Sturgis in the name of the corporation. (Merrick v. Van Santvoord, 34 N. Y., 208; Laws of New Jersey, 1846, § 29; 1 N. Y. R. S., 600, § 9; Pomeroy's Lessees v. State Bk., 1 Wal., 23.) The corporation remained in esse until formally adjudged dissolved. (Bk. of Niagara v. Johnson, 8 Wend., 645; Mickley v. Roch. City Bk., 11 Paige, 118; Kincaid v. Dwinelle, 59 N. Y., 548; Laws 1862, chap. 295; p. 509; 2 R. S., 474, § 100; Manchester v. Harrington, 10 N. Y., 164; Colegrove v. Breed, 2 Den., 125.) Even if the judgment were invalid as respects the corporation the proceedings in the action and the judgment record were competent evidence as between Sturgis and defendants as to the nature and extent of his claim. (Marine Bk. v. Jauncey, 1 Barb., 486; Bryant v. Russell, 23 Pick., 508, 520; Olcott v. Tioga R. R. Co., 27 N. Y., 557; 35 N. Y. Supr. Ct., 251; 62 N. Y., 625; SICKELS.-VOL. XXVIII. 49

Statement of case.

McGoon v. Scales, 9 Wal., 23; McCulloch v. Norwood, 58 N. Y., 562.) A judgment against the corporation was not a necessary prerequisite to the maintenance of this action. (Kincaid v. Dwinelle, 59 N. Y., 548; Shellinton v. Howland, 53 id., 371; Griffin v. Marquardt, 17 id., 28, 32, 33, 34.) There was no defect of parties. (Battett v. Drew, 57 N. Y., 587.) In an action in which the plaintiff has established his equitable right he should be allowed to prove the original legal cause of action upon which his equity is based. (Sternberger v. McGovern, 56 N. Y., 12.)

Henry E. Davies and Julien T. Davies, for respondent. The charter of the corporation having expired in 1869, the judgment entered against it in 1871, and the judgment affirming it in 1873, were rendered without jurisdiction, and were void. (1 Black. Com., 484; 2 Kent's Com., 307; People v. Walker, 17 N. Y., 503; Greeley v. Smith and Ex. Bk., 3 Story C. C. R., 658; Mumma v. Potomac Co., 8 Pet., 286; Merrill v. Suff. Bk., 31 Me., 62; Bk. of Miss. v. Wrenn, 3 Sm. & M. [Miss.], 791; Bacon v. Robertson, 18 How. [U. S.], 486; Cent. City S'v'gs Bk. v. Walker, 66 N. Y., 424.) At common law, upon dissolution of a corporation in any mode, all suits pending for or against it abate. (1 Black. Com., 484; A. & A. on Corp., § 779; Ingraham v. Terry, 11 Humpf., 572; Saltmarsh v. Planters' Bk., 17 Ala., 761; Prest., etc. of Bk. of U. S. v. McLaughlin, 2 Cranch C. C. R., 20; Read v. Frankfort Bk., 23 Me., 321; Bonaffe v. Fowler, 7 Paige, 576; Regna v. Holmes, 16 N. Y., 197; McCulloch v. Norwood, 58 id., 568; Livermore v. Bainbridge, 49 id., 127.) The modifications by courts of equity and by statutes applicable to this case of the common law rules is of the rule applicable to the abatement of debts, and not of actions upon dissolution of a corporation. (8 Pet., 281; Curran v. State of Ark., 15 How. [U. S.], 304; Wood v. Dummer, 3 Mason, 323; Mann v. Pentz, 3 N. Y., 415; Tinkham v. Borst, 31 Barb., 407; Bacon v. Robertson, 18 How. [U. S.], 480; Vose v. Grant, 15 Mass., 518; Bk. of

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