(192 N.Y.S.)

printed name of defendant. The proof shows that these orders were filled out by defendant and sent to the plaintiff by mail; that thereafter, and during February and March following the receipt of the written orders, the plaintiff spoke to the defendant's vice president several times, and demanded delivery of the goods called for in the orders.

The defense of res adjudicata, so elaborately referred to in respondent's brief, was not established on the trial. Apparently that defense was abandoned by defendant on the trial, as counsel made no motion in reference to it.

[1] The defendant's answer in setting up the defense of the statute of frauds states that there was no memorandum in writing "subscribed by the defendant in this action, the party to be charged therewith." This misstatement of the requirement of the statute may have led to some confusion on the trial. The present statute of frauds does not require the memorandum to be subscribed by the party to be charged. It is sufficient if that party or his authorized agent signs the same. Section 85, Personal Property Law (Consol. Laws, c. 41).

[2] It is now well settled that under the present statute of frauds the printed name of the party sought to be charged, at the top or in the body of the memorandum, is sufficient compliance with the statute. Cohen v. Wolgel, 107 Misc. Rep 505, 176 N. Y. Supp. 764; Pearlberg v. Levisohn, 112 Misc. Rep. 96, 182 N. Y. Supp. 615. The defendant having filled out these orders by its duly authorized officer, Mr. Smith, the vice president, that constituted an appropriation of the printed name of the defendant as its signature of these transactions. Lezinsky Co. Inc., v. Hoffman, 111 Misc. Rep. 415, 181 N. Y. Supp. 732.

[3] This proof established a prima facie case and required the submission of the case to the jury. Justice v. Lang, 52 N. Y. 323; 28 L. R. A. (N. S.) 699, note. The dismissal of the complaint was therefore error, and the judgment should be reversed.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

(118 Misc. Rep. 77)

ZIMMER v. UNION RY, CO. OF NEW YORK CITY.

(Supreme Court, Appellate Term, First Department. February 9, 1922.) Courts189 (15)-Defendant held not entitled to opening of default in Municipal Court.

Where defendant in negligence case in Municipal Court answered "expect to be ready" on the call of the calendar, but when the case was reached, at 3:15 p. m. on that day, was not ready, and had made no attempt to get ready and the inquest was taken, held that defendant was negligent and was not entitled to have the default opened, where its only excuse was that it determined that beyond any question of doubt the case could not possibly be reached for trial.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

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Action by John Zimmer against the Union Railway Company of New York City. From an order granting defendant's motion to open its default, and to vacate a judgment for plaintiff for $750 and costs entered on an inquest, plaintiff appeals. Order reversed, and judgment reinstated.

Argued December term, 1921, before GUY, GAVEGAN, and MULLAN, JJ.

Nelson Ruttenberg, of New York City, for appellant.

Alfred T. Davison, of New York City (Oliver R. Brant, of New York City, of counsel), for respondent.

*

GAVEGAN, J. Plaintiff brought this action to recover $1,000 for damages to plaintiff's automobile, alleged to have been caused by defendant's negligent operation of a street car. On behalf of plaintiff it is averred that defendant had answered "Expect to be ready" on the call of the calendar on October 10, 1921. It appears, also, that when the case was reached, at 3:15 p. m. on that day, defendant was not ready, had made no attempt to get ready, and the inquest was taken. Defendant's only excuse is that the case was far down on the calendar, so that its representatives did not think it could be reached on said day, and therefore made no effort to get ready. One of the affidavits submitted in support of the motion avers that the affiant, who "has charge of the Municipal Court calendars" for defendant's attorneys, "determined that beyond any question of doubt the case could not possibly be reached for trial, and therefore * * the case was not prepared for trial, and the attorney for plaintiff was informed that the defendant would not be ready for trial." It appears, therefore, that defendant's only excuse for this default is that its representative assumed authority to decide the case would not be reached. The calendar was under the sole control of the court. Defendant was required to have its witnesses and counsel attend for the trial when the case should be reached. It cannot be said that defendant was not guilty of neglect; for its own papers show that its representatives deliberately and willfully chose to gamble on the condition of the calendar, in defiance of plaintiff's rights and in utter disregard of the court. From an affidavit verified October 11, 1921, filed for defendant, it appears that, under present conditions, it is difficult to get a trial in a negligence action in the Municipal Court, it being averred:

"That the defendant has many cases in the Municipal Court, throughout the city, and since the opening of court this fall has only been able to try three of them, although defendant went to great expense in getting ready in cases which were not reached for trial."

It is to be noted that this action was commenced in December, 1920, and that defendant demanded a jury trial. The conduct of defendant's representatives indicates a studied and insolent effort to take advantage of present conditions, due to overcrowded calendars, in the Municipal Court, in order to delay plaintiff's recovery, and at the same time obtain the names of his witnesses, as well as an outline of their testimony.

(192 N.Y.S.)

If the order appealed from stands, it will be notice to all that by suffering a deliberate and willful default, in circumstances like those referred to, advantages may be secured with great disadvantage to the other side; that it may be done with impunity; and that it may result, not only in depriving an opponent of the rare opportunity for trying his case, for which he has waited long and anxiously, but may even result in another opportunity for trial being so remote as to lead to his giving up in discouragement and disgust. This method of keeping a party out of his rights is not to be encouraged. It is not only extremely insolent, but very unjust.

Order reversed, with $10 costs, and judgment reinstated.

PANTHER v. INTERBOROUGH RAPID TRANSIT CO.

(Supreme Court, Appellate Term, First Department. February 9, 1922.) Appeal and error 1066–Trial 252 (10)—Charge not applicable to evidence held confusing and prejudicial to plaintiff.

In suit against a railway company, where plaintiff had deposited a ticket in a canceling box and was prevented from entering trains by the railway's employee, who used abusive language, a charge that a passenger must not fight or resist by violence a request for the payment of a second fare, in view of the fact that plaintiff had not resisted or threatened to use any violence, and had not questioned the reasonableness of the regulation of the company, was confusing to the jury and prejudicial to plaintiff.

Appeal from City Court of New York.

Action by Alfred H. Panther against the Interborough Rapid Transit Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued January term, 1922, before BIJUR, LYDON, and McCOOK, JJ.

Avery, Taussig, Fisk & Palmer, of New York City (Charles A. Taussig, of New York City, of counsel), for appellant.

James L. Quackenbush, of New York City (Benjamin Sullivan, of New York City, of counsel), for respondent.

BIJUR, J. Plaintiff sued defendant for damages under the following circumstances: Plaintiff, upon entering a station of defendant's railway, dropped a ticket in the familiar canceling or "chopping" box. The ticket chopper followed him to the platform and prevented him. from taking either of two successive trains, meanwhile abusing him and using some violence, on the plea that he had not deposited a ticket. in the box. Two witnesses corroborated plaintiff's story that he had, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

and no one testified to his failure to deposit a ticket, because the ticket chopper was no longer available to defendant as a witness.

Upon this simple case, in which the sole issue was whether the plaintiff had or had not paid his fare (see Hahn v. Interborough Rapid Transit Co., 184 App. Div. 861, 172 N. Y. Supp. 633), the learned judge below undertook to charge the jury the law as he interpreted it to have been laid down in Monnier v. New York Cent. & H. R. R. Co., 175 N. Y. 281, 67 N. E. 569, 62 L. R. A. 357, 96 Am. St. Rep. 619, which the court in terms cited to the jury and expounded to the extent of five printed folios of the charge, laying stress on the fact that the passenger must not fight, that he must not resist by violence a request for the payment of a second fare, and more in the same vein. The Monnier Case, however, was concerned with the violent resistence of a passenger to the endeavor of a conductor to enforce what a majority of the court held to be a reasonable regulation of the transportation company. In the instant case the plaintiff did not resist, neither used nor threatened to use any violence, and no question of the reasonableness of a regulation of the company was involved. The charge, therefore, was highly confusing, and, so far as this particular part was concerned, manifestly prejudicial to the appellant.

Without going into detail, it may be said also that, while the court did charge a number of requests of plaintiff's counsel thereafter, two requests directed particularly to the erroneous application of the Monnier Case were denied. In addition to this, the court read verbatim from defendant's answer, in which plaintiff was charged with "assaulting said gateman, and did attempt to draw from his pocket a knife or some other sharp instrument or deadly weapon, with the felonious intent to take the life of the said gateman and to do him grievous bodily harm," etc., of all of which there was not even a scintilla of evidence, nor claim on the trial that such thing or anything similar had occurred. Under these circumstances, the verdict cannot stand, and the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

(118 Misc. Rep. 1)

GREEN v. PEOPLE'S GASLIGHT & COKE CO. OF BUFFALO et al.

(Supreme Court, Equity Term, Erie County. January, 1922.)

1. Corporations 180-Corporation owning stock of another has powers of individual owners of stock.

Under Stock Corporation Law, § 52, a corporation owning stock of another is permitted to possess and exercise in respect thereof all the rights, powers, and privileges of individual owners or holders of such stock, including the right to elect its own officers to the directorate of the other corporation.

2. Corporations 585-Corporation whose stock is owned by another corporation is not technically merged therein.

Though all the outstanding stock of a corporation was bought by another, it was not technically merged in the holding corporation.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(192 N.Y.S)

3. Corporations 180-Duty of corporation owning all the stock of a public service corporation stated.

Under Stock Corporation Law, § 52, providing that a corporation may own stock in another and possess all the rights, powers, and privileges of individual owners of such stock, where a corporation owned all the outstanding stock of a public service company, it owes a duty to exercise the franchises of the public service corporation, primarily to the public, and then to its stockholders to whom the interest in the public service company belongs, subject to the rights of owners of obligations issued for the lawful purposes of the public service company pursuant to section 6.

4. Corporations 180-Directors held not authorized to lease property to another corporation owning all its stock so as to defeat rights of creditors. Though under General Corporation Law, § 34, the power of leasing the property of one corporation to another is primarily in the board of directors, and under Stock Corporation Law, § 52, officers of a corporation owning all the stock of another corporation are eligible as directors of the latter, its directors however chosen, cannot convey its revenues or assets to the holding corporation under a lease so as to defeat the rights of creditors, the latter section contemplating a continuation of its corporate being, and section 15, though providing for a merger in such case on compliance with certain requirements, declaring that it shall be without prejudice to liabilities or rights of creditors of the merged corporation.

5. Corporations 180-Equity will prevent corporation owning all the stock of another from leasing latter's property so that interest cannot be paid on its bonds.

Where a corporation holds all the outstanding stock of another corporation, and the directors of the latter, who were also officers of the holding corporation, leased its property to the holding corporation, and as a result interest could not be paid on its mortgage bonds, though the mortgage provided for action by the trustees on default in payment of interest, equity will intervene to protect the interest of the bondholders on refusal of the trustees to act in their behalf.

6. Corporations 180-Bonds held entitled to priority over bonds of same corporation owned by another corporation holding all the stock of former.

Where a corporation owning all the stock of another corporation has so manipulated its affairs, in violation of law, through use of its property and franchises, that it cannot meet its obligations, mortgage bonds of the latter held by the former became merged, at least as against the remainder of the outstanding bonds, by the contemporary ownership thereof and of all the latter's stock by the former, and it would be unjust and inequitable to enforce the bonds so held on a parity with bonds acquired by third persons, and they should therefore be decreed to be a prior lien.

Suit by James A. Green, suing on behalf of himself and other bondholders, etc., of the People's Gaslight & Coke Company of Buffalo, against the People's Gaslight & Coke Company of Buffalo and others. Decree for plaintiff.

Fleischmann & Pooley, of Buffalo (Simon Fleischmann, of Buffalo, and David Gerber, of New York City, of counsel), for plaintiff.

Kenefick, Cooke, Mitchell & Bass, of Buffalo (Daniel J. Kenefick and Chas. P. Franchot, both of Buffalo, of counsel), for defendants Judge, Gethoefer, People's Gaslight & Coke Company of Buffalo, and Queen City Gaslight Co. of Buffalo.

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