in money.

execution, which was returned unsatis Had they exercised an honest judgfied.

ment and a fair discretion in reference Plaintiff now sues defendant, who is to them, the stockholders would not a stockholder in said company to an have been liable. amount greater than the plaintiff's But this they failed to do; and sich claim, under Sec. 32, 2 R. S. 1). 660, omission was important and tatal to the (ith edition), on the ground that the defen ants. capital stock had not all been paid in. Judgment affirmed.

It appeared that the capital stock was Opinion by Brady, J.; Davis, P. J. issued upon certain terms to one of the anıl Daniels, J.,concurring. corporators, in payment for certain patent rights, which were taken out by the

EVIDENCE. corporators for that purpose; and that no part of the capital-st ick was paid in N. Y. SUPREME Court. GENERAL TERM

FIRST DEPARTMENT. The question was submitted to the Gen. W. Southwick, applt. v. Benj. jury, as to whether this transaction was F. Mudgett, respt. an evasion of the statute.

Decided May 1, 1876. No estimate of the value of these When moncy is sued for as a loan, for patents appears to have been made by which a receipt had been given, it is the incorporators.

competent to show that it was not a

loun, but a deposit for a specific purErastus Cook, for respt.

pos. B. F. Murgett, for applt.

In action on a note it is competent to On appeal.

show a want of consideration. Heu, That under the provisions of Appeal from jndgment entered on the act of 1853, chap. 333, the trustees report of referee. may purchase property necessary for

Plaintiff claims to have loaned de. the business of the company, and issue fendant $3,000, and brings this action stock to the amount of the value to recover the same. thereof. They are not authorized to do Defendant denies the loan, and al. more, and the property therefore rep- leges that the money had been given resents the capital-stock only to the ex- him by plaintiff, to be invested in a certent of its value.

tain sewing machine company, on the The defendant failed to show, either understanding that if the company that the patents

valued at should dissolve, and not reorganize, deany sum, when the company was form. fendant should pay back the $3,000, ed, or what was their actual value at otherwise it was to be invested in the that time. The value of a patent is company's stock. much a matter of conjecture, until the That the company was afterwards reprocess to which it relates has been tried. organized and the money invested in But experiments had been made with its stock, and also set up a counterthe patents in question, and some in- claim for professional services for formation gained from the results, which $3,200. would have enabled the corporators to The issues were referred to Henry have formed an estimate of their value. Nicholl, Esq., to hear and determine


Plaintiff' put in evidenc: the receip CONSTRUCTION OF WILL. given by defendant on receiving the


Gourley, admr. &c., respt. v. Camp“NEW YORK, April 25, 1867.

vell et al., applts. “ Rceived of G, W. Southwick, Esq., three thousand dollars, to be paid | The provisions of a will which pro

Decided May 23, 1876. on demand, with interest.

vides that the executors shall place “B. F. MUDGETT."

the proceeds of collection of debts And objected to defendant's giving due testator and all his property real any parol testimony tending to show and personal at interest on bond and any such understanding, as claimed by mortgage or otherwise, as in their defendant, or to his showing that the

judgment they may deem best, and

that the proceeds, rent, income, or money was not given as an absolute loan;

interest should be used for the supon the ground that the terms of the writ

port of testator's wife anil chillren, ten instrument could not be varied by anıl devising and bequeuthing all his parol evidence.

property to the chililren on the death The evidence throughout was con

of the wife, are too indefinite to art

thorize a conclusion that the erecuflicting.

tor's were bound sell the real es'ute The referee foun that the complaint in any event. should be dismissed and $1,000 counter The personal property being sntjicient claim allowed defendant.

to support and ellucate the children

and maintain the willow, the land W. A. Arnoux, for applt. Jno. II. Iland, for respt.

retuined its original character anil

descended to the heirs. On appeal.

This action was brought for a conTIeld, That it would be a sufficient struction of the will of one II. and for answer to plaintiff's objections to de

the appointment of a trustee to carry tendant's testimony, that the action was

out an unexecuted trust under it. for a loan, an! not on a written instrument.

The will, a ter providing for the col It was certainly competent lection of all sums due testator and the for detendant to show that the

settlement of his business and the pay. given was not a loan, but a deposit, for

ment of his debts, contained these a purpose in plaintiff's interest, and to

words: which it had been applied. But assuming that the paper was a ceeds thereof and all my property,

My executors shall place the propromissory note, it was equally comper both real and personal, at interest on tent, for the defendant to show a want

bond and mortgage or otherwise as in of consideration, and this he did, for

their judgment they may deem best.” he showed that the money paid him,

This was followed by a direction was employed for plaintiff's benetit, and in the manner directed by him. that the proceeds and rent, income, or

The counter claim was allowed on interest shall be employed and used for conflicting testimony, and we cannot the support and maintenance “ of my say that ihc referee was not justified in beloved wife, Elizabeth, and for my his findings in this respect.

children, and their education." By the Ju gment aflirmed.

Opinion by Brady, J.; Davis P. J. concluding portion of the will the te:. and Daniels, J., concurring.

tator devised and bequeathed to his



children, by name, all his "estate both Also heli, That the costs being in real and personal of all kinds whatso- the discretion of the court, and the ever, to be divided equally among them questions involved being difficult and on the death of the mother.”

intricate, they should be paid out of the The personal estate of the testator property. was sufficient for the support and edu Judgment of General Term, affirmcation of lis children and maintenance ing judgment of Special Term, rerers

cd. of the widow.

Opinion by Miller, J. All the testator's children died unmarried and intestate prior to the death MORTGAGE FORECLOSURE. of his widow. None of the real estate

N. Y. COURT OF APPEALS. was sold by the executors. Upon their

McMurray et al., respts., v. McMurdeath an administrator with the will annexed was appointed, and upon

ray, applt. the

Decided May 23, 1876. death of the widow there remained in Where a life estate is left to a widow, his hands a surplus of the personal with remainder to infants, she stands property, rents, &c. The plaintiff' in in a position of trust towards such this action, the administrator with the infants. And where she sold a porwill annexed, and next of kin to the

tion of the property (under a power widow claimed, and the court below

in the will) for a very low price, and

did not apply the proceeds on found. that the testator intended tù con

mortgage on the property, but allowvert the real into personal property; ed it to be foreclosed, the decree of Vaat the death of the last sur foreclosure is ineffectual to bar the viving child it vested in the widow as equity of the infant remaindermen, personal property, and a trustee was ap

who were defrauded thereby, and

they can maintain an oriyinal acpointed to carry out the trusts by sell

tion in equity to avoid it. ing the real estate.

The purchaser, the mortgagee, havirg Rob’t Johnston, for applt.

taken it with full knowledge of all C. F. Brown, for respt.

the facts, became merely a mortgagee

in possession, and was bound to aclleld, error. That the testator made

count to the infant remaindermen no such disposition of his real estate for their share of what he realized by his will as to constitute an equitable

over and above the mortgage. conversion of it into money. 46 N. y. A judgment entered without having a

guardian ad litem appointed for in162 ; 1 Hoff'. Ch. 218.

fant defendanis is not absolutely That the provisions of the will were void, but voidable. too indefinite to authorize the conclusion

This action was brought to obtain that the executors were lound to relief against a judgment entered by

default in an action brought by defendAlso held, That there being no ne- ant to foreclose a mortgage. The mort. cessity for a sale of the real estate the gaged premi:es were owned by the land retained its original character and uncle of plaintiffs and had a frontage descended to the heirs. 2 Ves. Jr., 271; of :80 feet on 7th street, Troy, and 4 Edw. Ch. 613; 6 J. R. 73; 3 Cow. were mortya ed by him to defendant

5 Paige, 447; 2 Bro. Ch. Cas. for $10,000, in 1856. In January, 595.

1860, the morty-gor died, leaving a

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any event.


will, of which his wife was executrix, between defendant and the executrix. wherein he devised to his widow a life No report of sale was ever filed or conestate in 128 feet front, with remainder 'tirmed. Defendant entered into posin fee in 9-20ths thereof to plaintiff's. session under the purchase and has All his real estate not disposed of by realized about $19,500, of which about the will, including the remainder of the $15,500 were the proceeds of the 128 mortgaged premises, and his personal feet. The ex cutrix, in consideration estate not disposed of he ordered his of the arrangement under which the executrix to sell and convert into judgment was obtained, received from money, and with the proceeds pay and defendant a lease for her life at a nomdischarge his debts, including the inal rent of one of the houses on the mortgages and incumbrances upon the 128 feet. Plaintiff's claimed that the 7th street property devised as before judgment was void on account of frand mentioned. In May, 1860, detendant, and because no guardian ad litem was who was cognizant of these facts, com- appointed for them. menced an action to foreclose his mort Martin I. Townsend, for applt. gage. The executrix answered, setting S. W. Jackson, for respts. up as defences usury, payment and a

lled, That the executrix stood in a counter claim. The plaintiff's herein, relation of trust towards plaintiff's as who were infants at that time, were far as the execution of the powers of made defendants, but no guardian ad sale of the 52 feet was concerned, and litem was appointed for them. After it was her duty to obtain as nearly the action had progressed come months

as possible the fuil value an arrangement was made betwten the sale thereof, and apply it in reduction defendant herein and the excentrix, of the mortgage, and she had no right whereby, under the power of sale in the to convey for a nominal consideration, will, instead of selling the 52 feet for and under the circumstances the decree their full value, which the referee found of foreclosure as between plaintiffs and to have been $5,950, and applying the the defendaut was ineffectual to bar the proceeds to the reduction of the mort.

equity of redemption of the plaintiffs, gage, she conveyed them to defendant and they were entitled to have it avoidfor tlie nominal price of $500, and ed, and could maintain an original withdrew her answer in the foreclosure action in equity for that purpose. 8 suit and stipulated that judgment N. J., 9. That although the judgment might be taken therein for the full might not be void so as to impair the amount of the mortgage with interest title of bona fiile purchasers from de. and costs, without crediting anything fendant, yet as between him and plainfor the 52 feet conveyed. Judgment tiffs he had no equity which should of toreclosure and sale was entered and entitle him to retain the fruits of the defendant bid in the premises for proceeding or to prevent them from $14,000, which the referee found was avoiding it. That when detend much less than their value. There was entered under his purchase he became a surplus of $2,000, which was never merely mortgagee in possession, and brought into court and of which plain was bound to account to plaintiffs for titt's have received no part, but which their share of what he realized over Was disposed of under an arrangement and above the mortgage debt.



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Also held, That th judgment entered By force of this act the provisions of without having a guardian ad litem the Code respecting attachments wth appointed for the infant defendants, all the concomitants and incidents though voidable, was not absolu:ely affecting snch proceedings are made void. 1 IIill, 130, 143 ; 18 Vt., 290; applicable to the Marine Court and 3 Metc., 196; 3 Dev. (N. C.), 241; remain unaltered and unaffected by the 17 N. Y., 218; 7 Robt., 147, 546. act of 1875, which makes no change

Judgment of General Term, affirm- in the attachment law applicable to the ing judgment for plaintiffs, affirmed. Marine Court. Opinion by Rapallo, J.

It is apparent that no change was

intended, and none follows by implica. JUSTIFICATION ON UNDER

tion. The justification of the sureties TAKING TO DISCHARGE AT. on the undertaking to discharge the

attachment must therefore be had acTACHMENT.

cording to SS 241, 193 to 196 of the N. Y. MARINE COURT. SPECIAL TERM.

John II. Seed v. Maria Teale.

Motion denied.
Decided June 14, 1876.
The sureties on an undertaking given REFEREES. EVIDENCE.
to discharge an attachment issued

N. Y. COURT OF APPEALS. from the Marine Court of the City of New York, may justify before a Lathrop et al., respts. v. Bramhall, county juilge of the county in which admr., &c, et al., applts. they reside.

Decided March 21, 1876. Motion to compel sureties to justify before a judge of the Marine Court.

There is a distinction between a reserThe defendant furnished an under

vation of a question as to the effect

of evidence, and a reservation as to taking to discharge attachment against

its admissibility: her property. The sureties resided in Unless the party's rights or interests Oneida County, New York. Notice of are injuriously affected by the reftheir justification was given to be had

cree's action in the former case, no before a county judge of Oneida Coun

rule of law is violated, and the ref

eree has a right to use his discretion ty. Plaintiffs claimed the justification

in reserving his decision. must take place only before a judge of Evidence is admissible to confirm oral the Marine Court in New York.

testimony as to the terms of a con

tract. There is no valid objection P. Q. Eckerson, for motion.

where an oral contract has been made Charles II. Smith, opposed.

to prove that a memorandum of its Mc Adlam, J. By the act of 1872 principal terms was made and read (Chap. 629, S 6), “ An attachment may

to the parties at the time. issue in an action in the said (Marine) This action was brought to recover Court für like causes and in the man- the balance, unpaid, of the price agreed ner and with like effect as allowed and upon for the transfer of certain stocks, prescribed by the provisional remedy' and the point in controversy was as to of the Code of Procedure and for causes which of the defendants is liable. allowed by existing law in the said Upon the trial defendants' counsel Marine Court."

| objected to the admission of certain

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