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will be so construed in order to enforce under chapter 40, laws of 1848, which a right. People ex rel Otsego Bank v. had become insolvent, from the defenBoard of Supervisors, 51 N. Y., 401. dant a stockholder and trustee thereof.

That because the Board audited the The complaint charged and sought to claim plaintiff was not from that fact recover on two grounds, 1st. that defenentitled to have the tax levied and col- dant had not paid his stock and that no lected, for the authority conferred by certificate had been filed to the paying the act is entire, and the exercise of one in of the capital stock of the company. part does not of itself confer a right to 2nd, that he was liable as trustee, by demand the exercise of the other part. reason of the failure to make and pub

That the fact that the Supervisors lish the report required by law. Deadopted a report of a committee recom- fendant demurred on the ground of an mending that the Board award a sum improper jorder of causes of action. therein stated to the claimant, on cer- The demurrer was overruled. tain conditions, was not a final and Geo. W. Weiant. for respts. conclusive audit of the same, and the A. H. Hitchcock. for applts. plaintiff has not complied with the con

Held, Error; that the nature of the ditions.

two actions is essentially different, The demurrer admits the truth of although the object to be attained is the facts stated in the return.

the same, the one being on contract, and The judgment on the demurrer af- the other on a statute for a penalty or firmned, with costs.

forfeiture, that there is no such connecOpinion by Gilbert, J.; Mullin, P. tion between the transactions out of J. and Smith, J., concurring.

which the causes of action arose, and

the “subject of action," as to justify PLEADINGS. MISJOINDER. CAU- uniting them in the same action. SES OF ACTION.

The complaint contained but one N. Y. COURT OF APPEALS.

count, composed of series of allegations. Wiles, et al., respts. v. Suydam, applt, Held, That the omission to state the Decided February 8, 1876.

causes of action in separate counts, proIn an action against a stockholder to perly numbered, did not deprive defen

recover the amount of a judgment dant of the right to demur. against an insolvent corporation, on Judgment of General Term, affirming ground of failure to pay in his stock, judgment, overruling demurrer, reand because no certificate of the pay

versed. ment of capital stock had been filed ; a cause of action, seeking to recover Opinion by Church, Ch. J. against defendant as a trustee of the corporation, for neglect to make and publish the report required by law,

SAILING RIGHT. SALE OF cannot be joined.

PHILADELPHIA COMMON PLEAs, No. 2. The fact that the allegations as to both

Williams v. Ireland. grounds were mingled in one count, does not deprive defendant of the Decided April 8th, 1876. right to demur.

The rule that the sale of an interest in This action was brought to recover a vessel by a part owner, who is also the amount of a judgment against a a master, carries no right to the commanufacturing corporation, organized mand, is founded on the policy of

the law, and a contract to sell the owners of more than half the vessel that command, even by the owners of a Captain Smith should have the commajority interest, is incapable of en- mand of her on half shares—the same forcement. Any contract that fetters the judgment

terms on which she had been sailed by of the owners, or binds them to the defendant, in which consent, however, selection of a particular person, is plaintiffs did not join. in violation of the rights of the other The foregoing facts were agreed upon parties, whose property or lives are by both parties, and also that plaintiff's involved in the voyage, and therefore at the time of the sale were owners of

void. Where a master, who is also part owner, one fourth of the vessel-proof as to

sells his share and transfers the com- the other one-sixteenth named in the mand to his vendee, the latter takes bill of particulars having failed, and only an expectancy that he will be that much being abandoned by plaintiffs allowed by the owners to retain the command, and whatever he pays for

counsel. The only contested facts in this expectancy is a profit to the the case were how much of the $1,500 former master for his relinquish- paid by Smith was for the personal proment of the command, and not any perty, and whether the rest of the purpart of the ship's earnings, in which chase money was more than the value the other owners are entitled to share. of the share of the vessel, and was paid

This was an action of assumpsit, and to the defendant partly as compensation the declaration contained the common for his transferring to Smith the com-counts only. · The bill of particulars mand of the schooner with the consent claimed the sum of $468, “ being the of a majority of the owners. Upon 5-16ths of the amount received by the these questions the case went to the defendant while acting as managing jury with instructions to find a verdict owner of the schooner Archer & Reeves for plaintiffs for one-fourth of whatever (of which plaintiffs were the owners of they should find, if anything, was paid 5-16th parts) in consideration of install as compensation for such transfer of the ing one B. C. Smith as master of said command; and the question was reschooner, and permitting and selling to served whether plaintiff's as part owners the said Smith the right to sail and were entitled by law to recover any manage said schooner, and to receive share of such compensation. The jury and keep for his own use and profit the found that part of the money paid by one-half of the net earnings of said Smith was for the transfer of the com schooner.”

mand to him by the defendant, and At the trial it was proved that defen- their verdict was accordingly for plain. dant, being the owner of one-eighth of tiffs for $371,05; and the question is, the schooner, and being at the same whether under the facts thus agreed time master and managing owner, sold

upon or found by the jury, the plaintiff's to Captain Smith his (defendant's) one are entitled to recover. eighth share and certain personal pro Held, There is no such thing in genperty on board the schooner, and also eral as a sailing right which binds the transferred to him the position of mas- owners of a vessel ; that the sale of the ter, receiving from Smith the sum of command is only an expectancy that the $4,500. Before the transfer defendant owners will permit the purchaser to obtained the written consent of the continue, and therefore he acquires no

right which can be the subject of a con- The power to enact and enforce ordisideration paid.

nances has always formed an essenThe rule that the sale of an interest

tial feature in the creation of muni

cipal corporations. The legislature in a vessel by a part owner, who is also

may confer the power upon the Commaster, carries no right to the command, mon Council, or any of the departis founded on the policy of the law, and ments of the municipal government. a co::tract to sell the command, even by Certiorari to the Court of Special the owners of a majority interest, is in- Sessions on the conviction of the relator capable of enforcement. The reason is, of a misdemeanor. that it is the right and for the interest Patrick Cox, was, on the 16th day of of all parties concerned, the owners, the February, 1876, at Special Sessions, charterers, the crew and the passengers, convicted of the misdemeanor of keepthat the master should be selected solely ing and offering for sale at No. 119 for his fitness, and should be removable Mulberry street, in the City of New at any time. Any contract that fetters York, watered and adulterated milk, in the judgment of the owners, or binds violation of certain sanitary ordinances them to the selection of a particular of the Board of Health, and was senperson, is in violation of the rights of tenced to one month in the Penitentiary. the other parties, whose property or lives The plaintiff in error, alleges that are involved in the voyage, and there- there is n t sufficient evidence to warfore void.

rant a conviction, because it was not This rule is well established, and one established on the trial, that he ever of its results is, that where a master, owned said grocery business, or ever who is also part owner, sells his sliare sold or offered for sale any milk at said and transfers the command to his vendee, store, or at any other place.

That the the latter takes only an expectancy that acts of the legislature empowering the he will be allowed by the owners to re. Board of Health to enact sanitary orditain the command, and whatever he nances is unconstitutional and that it pays for this expectancy is a profit to did not appear by the return that the the former master for his relinquishment persons before whom the relator was of the command, and not any part of tried, were the officials having the power the ship's earninys, in which the other to hold the court. owners are entitled to share. The The ordinance of the Board of Health plaintiffs have no cause of action. declares, “That no person shall have

Judgment is therefore entered for the “at any place where milk and butter defendant on the point reserved. “or cheese is kept for sale, nor at any Opinion by Mitchell, J.

“place, offer or have for sale, nor shall

" any person bring or send to said city, SELLING ADULTERATED MILK. any unwholesome, watered, or adulteN. Y. SUPREME Court, GENERAL TERM.

“rated milk, or milk known as swill FIRST DEPARTMENT.

"milk, or milk from cows and other Patrick Cox, plff in error, v. The “ animals, that for the most part lived

"in stables, &c." People of the State of New York,

Section, 82, article eleven, of chap. defts. in error.

335, of the laws of 1873, authorizing the Decided March 31, 1876.

Board of Health to pass the ordinances

reads as follows: The Board should nance in question. It was merely the also be “authorized and empowered to exercise of municipal authority, through " add to such sanitary code, from time the intervention of this Board instead "to time, and shall publish additional of the Common Council.

provisions for the security of life and The fact that the return is prefaced “ health in the city of New York * * * with the statement that the aforesaid per “ which shall be published in the City sons who tried the relator, are the Police Record. Any violation of said code, Justices and the Justices of the Court “shall be treated and punished as a of Special Sessions, and besides the fact “misdemeanor, and the offender shall that the writ was issued to them as Po“ also be liable to pay a penalty of fitty lice Justices and Justices of the Court

dollars, to be recovered in a civil action of Special Sessions, is sufficient answer “in the name, &c.”

to the objection that it nowhere appearWilson S. Wolf, for relator.

ed that the officials before whom the W. P. Prentice, for respts.

relator was tried had power to hold the Held, The power to enact and enforce Con t. ordinances, has always forined an essen Opinion by Davis, P. J.; Daniels tial feature in the creation of municipal and Brady, J. J., concurring. corporations, and the constitution contains nothing restricting its exercise to LIFE INSURANCE. ACT OF GOD. any particular part of the municipal

NEW YORK COURT OF APPEALS. body. It may be conferred upon the Evans, applt., v. The United States Common Council, or any other depart- Life Insurance Company, respts. ment of the municipal government, as

Decided February 25th, 1876. the necessary result of the plenary au- A life policy containing a clause makthority secured by the constitution to

ing it void if the insured went south the legislature.

of certain limits without the consent That the legislature could confer it

of the company, is invalidated by

the continued stay of the insured upon the corporation is very clearly set south of such limits, whither he went tled by an unbroken weight of authority. under consent of the company for a 2 Daly, 307; 4 Meeson & W,621, where prescribed period it was held that corporate by-laws, en- And where the company's officers, after acted by authority, have the same effect

such forfeiture, declined to receive

further premiums un'ess 24 per cent. within these appropriate limits as an act more was paid to cover the additionof parliament. Id. 640 ; 3 Allen. al risk, and gave plaintiff's agent

The practice on the other hand has till next day to pay, agreeing to keep long existed by which the power has

the policy in force and give credit

for the premium and percentage, they been conferred upon boards of health.

have the right to abandon their agreeAnd it has not been limited to the cases

ment, and to refuse to receive the of large cities.

premium and percentage, and declare The power of the legislature over the the policy forfeited. subject has not been denied by the con- That the insured was ill, and that it stitution, and the conclusion necessarily

was highly inconvenient for him to follows that it could, as it has, delegate

return, affords no ground for relief,

unless it appear that he was actually to the Board of Health of the city of

unable to travel, even by short stages New York the power to make the ordi and at great expense.

This action was brought upon a poli- 28th 1870, and had the right on the cy of life insurance, which contained a 29th to refuse to receive the money and clause, that if the insured, without the decline the engagement it had offered written consent of the insurer, should, to make, that even if this proposition " between the 1st of July and the 1st had been binding on defendant for the of November, visit those parts of the year 1870, it had the right in October, United States which lie south of the 1871, to refuse to continue the policy southern boundaries of Virginia and any longer. It was claimed by the Kentucky, this policy shall be void.” plaintiff that after the insured went In November, 1869, the insured went south, he became so sick and feeble that to Louisiana, and remained there until he could not return, and that hence his he died, March 18th, 1872. He had return was rendered impossible by the the written permit of defendant to go act of God, and that therefore there was to New Orleans and remain until July no breach of the policy. The evidence 1, 1870. On Oct. 28, 1870, plaintiff's showed that the insured had met with agent went to defendant's office and an accident before going south, that his offered to pay the annual premium and health was very poor in the summer of tendered the amount to defendant's 1870, and he could only ride out to the officers. They declined to receive it on plantation in which he was interested, account of the residence of the insured in a buggy and ride back without getin the south, unless he would pay 23 ting out of it, and was never any better. per cent. more on the amount insured. There was no evidence that he was too The agent stated he could not do this unwell to return north, or that he made without the authority of his principal any effort to return; and his condition and the officers agreed to continue the prior to July 1, 1870, was not described. policy in force, and give credit for the lield, That to bring the case within premium due, including the extra the supposed rule, there should have amount claimed until the following day, been proof, that for some time before in order to give the agent time to report July 1, 1870, the insured was unable to to his principal and his principal time travel by any of the usual modes. He to comply. On the next day, plaintiff was bound to return if he could travel sent another agent to defendant's office, by short stages, or by incurring unusual who then tendered the amount of the expense to secure comfort, safety, and premium, together with the extra 2 convenience. The insured took the per cent. claimed, and defendant re- chances of being able to return, and fused to receive it claiming that the being feeble when he went, he could not policy was void.

go so far south that he could not return, F, G. Salmon, for applt.

and then claim that his action was renEdgar S. Van Winkle, for respts. dered impossible by the act of Gud.

Order of General Term reversing Held. That the violation of the pro vision of the policy by the continued judgment for plaintiff, and ordering residence in the south, of the insured, new trial affirmed. invalidated it, and that defendant was Opinion by Earl, J. not bound by the proposition made by its officers to plaintiff's agent on Oct.

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