Dissenting opinion, per BRADLEY, J.

hold their offices until their successors are chosen. (L. 1875, ch. 611, § 10.) In view of that provision of the statute the question arises whether the transfer by a director of his stock operates to terminate his relation as such to the company, and if so whether the defendant did effectually for that purpose transfer his stock prior to the creation of the debt upon which the action is founded.

My attention has been called to no other provision of the statute upon the subject of the eligibility of a person for the place of director. And that does not in terms declare that such relation shall terminate when he ceases to be a stockholder. The defendant was such when elected and the statute provided for his retirement only on the election of his successor. But without further considering that question, the inquiry arises, Did the plaintiff, as between him and the company cease to be a director before such debt was contracted? By reference to the statute it is seen that "no transfer of stock shall be valid for any purpose whatever, except to render the person to whom it shall be transferred liable for the debts of the corporation according to the provisions of the act, until it shall have been entered" in the book referred to "by an entry showing from and to whom transferred." (Id. § 17.) And the by-law of the company provided that transfers of shares should "only be made upon the books of the company" in the manner there directed. The defendant owned eighty shares of the stock, and no more than seventy-five of them were transferred upon the books of the company, and as between him and it, his relation of stockholder of five shares continued. (Adderly v. Storm, 6 Hill, 624; Worrall v. Judson, 5 Barb. 210; Rosevelt v. Brown, 11 N. Y. 148.)

It would seem that the question here is not in the fact whether the defendant had transferred his stock so as to vest title to it in another as between them, but is, what was his relation which the company could treat him as having to it, as it is between him and the corporation that the inquiry would arise whether or not he continued to be one of its directors. And for the purpose of his eligibility he would

Statement of case.

properly be treated by the company as a stockholder until his transfer was entered on the book. If that view is sound, he never, as to the company, ceased to have five shares of the stock after he was elected director.

While it is true he made and delivered to Jones the certificate with an assignment upon it covering the eighty shares without consideration, it appears that when the certificate was surrendered and new ones taken the shares were so divided that Jones took seventy-five, and certificate for the other five was issued to the defendant. All inferences of fact legitimately arising from such transaction and bearing in that direction are to be taken in support of the recovery.

These suggestions lead to the conclusion that the judgment should be affirmed.

All concur, with PARKER, J., except BRADLEY, J., dissenting. Judgment reversed.

CLARENCE R. CONGER, Appellant, v. JOHN TREADWAY,
Respondent.

A cemetery was formerly owned by eleven persons as tenants in common; eight of them executed a power of attorney to G. and M. to sell and convey lots therein. M. did not act. G. undertook the execution of the power and continued to sell lots until he became disabled. Thereafter B. acted as attorney. In an action of ejectment to recover a lot in the cemetery, plaintiff claimed title under a sale in an action for partition between the original owners or their successors in title. Defendant claimed the lot by virtue of a purchase from G., and payment of part of the purchase-price to B., with agreement to pay the balance when the deed was delivered. It appeared that B. acted as attorney for a number of years, collecting money and paying the liabilities of the owner, and kept a book in which sales of lots were entered, in which was entered the sale of the lot to defendant. Defendant, immediately after his purchase, took possession of the lot, improved, graded and sodded it, buried seven persons therein and had been in possession for over twenty years. No deed was ever tendered to him. Held, that a verdict was properly directed for defendant; that while no express authority for B. to act as attorney was shown, the fact that he did so with the knowledge and consent of the owners necessarily raised the inference of authority, and

Statement of case.

defendant, therefore, was rightfully in possession, and if the contract for the purchase was to be considered as executory, he was entitled to possession until the production and delivery to him of a deed; if not executory, he having entered under claim of title, acquired title by adverse possession.

(Argued March 7, 1892; decided March 22, 1892.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 9, 1889, which affirmed a judgment in favor of defendant, entered upon a verdict directed by the court.

The nature of the action and the facts, so far as material, are set forth in the opinion.

Irving Brown for appellant. The defendant was erroneously permitted to testify in his own behalf to conversations and transactions with Gurnee concerning these lands and the lot in question, with the purpose of establishing acquiescence on the part of Gurnee, then an owner, in his claim of right to the possession or ownership of the plot in question. (Code Civ. Pro. § 829; Chaffee v. Goddard, 42 Hun, 150; Holcomb v. Holcomb, 95 N. Y. 317; Stuart v. Paterson, 37 Hun, 119; Oliver v. Freligh, 36 id. 633.) The defendant having been unable to show any authority on the part of Richard T. Blanche to act for the owners, his payment to him of part of the amount agreed on with Gurnee was no payment for the plot, and the tender of "the balance" was no tender. The defendant is in the position of neglecting or refusing to perform, and ejectment lies. (Marvin v. Wilbur, 52 N. Y. 270; Snook v. Lord, 56 id. 605; Scott v. Stevenson, 3 Hun, 352; People v. Parish, 4 Den. 153; Ives v. Davenport, 3 Hill, 373.) In no case can it be assumed that Gurnee was authorized to act for Isaiah Milburn (his co-attorney), or for Daniel R. Weed, who did not execute the power. The defendant was unable to give proof of this, and the strongest claim he can make for his alleged contract with Gurnee is that it entitles him to nine undivided elevenths of the land. He is even so a tenant in common, claiming exclusive possession against his co-tenant, and eject

Opinion of the Court, per HAIGht, J.

ment was the plaintiff's only remedy against him. (Newton v. Bronson, 13 N. Y. 587; Florence v. Hopkins, 46 id. 182.) Defendant is not now in a position to demand specific performance of the contract, even if it were binding on the plaintiff. (Delavan v. Duncan, 49 N. Y. 487, 488; Guest v. Humphrey, 5 Ves. 818, 823; Edgerton v. Peckham, 11 Paige, 352; Finch v. Parker, 49 N. Y. 1; Milward v. Thanet, 5 Ves. 720.)

Geo. W. Weiant for respondent. An equitable title may be interposed as a defense in an action of ejectment. (Glacken v. Brown, 39 Hun, 294; Risley v. Price, 40 Hun, 585; Code Civ. Pro. § 507.) The facts proved showed the defendant to be a purchaser in possession and not in default. (Kelly v. Burrows, 102 N. Y. 93.) The evidence being such that a verdict for the defendant could have been sustained, the direction. to find such verdict was not error. (Stratford v. Jones, 97 N. Y. 586; Mayor v. Sands, 39 Hun, 519; O'Neil v. James, 43 N. Y. 84; Nichols v. Martin, 35 Hun, 168-173; Village of Port Jervis v. F. N. Bank, 96 N. Y. 550-560.) It was competent to give in evidence the statements and acts of John S. Gurnee, wherein he was acting as agent of the owners of the cemetery. (Hildebrandt v. Crawford, 65 N. Y. 107; Pratt v. Elkins, 80 id. 196; Chadwick v. Turner, 69 id. 404; Worrall v. Munn, 5 id. 229.) No technicality should avail plaintiff. (Conger v. Treadway, 3 N. Y. Supp. 152; 7 id. 809.)

HAIGHT, J. This action is in ejectment to recover a plot of ground known as lot No. 192 of Mount Repose cemetery in Haverstraw, N. Y.

The cemetery was formerly owned by eleven persons as tenants in common. In the month of April, 1854, a power of attorney was executed by eight of the tenants in common to John S. Gurnee and Isaiah Milburn, to grant, bargain and sell the premises in question for such sums or prices as to them shall seem meet, and to execute, acknowledge and deliver good

Opinion of the Court, per HAIght, J.

Daniel R.

and sufficient deeds and conveyances for the same. Weed, one of the owners, did not join in this power of attorney, and it appears that Isaiah Milburn, one of the attorneys so appointed, took no active part therein. Gurnee undertook the execution of the power and continued to sell lots as long as he was physically able to attend to the matter, and thereafter, and after his death, R. T. Blanche, his son-in-law, acted as the attorney and controller of the owners for the space of about eight years, and until his death.

The plaintiff claims to be the owner by reason of a purchase under a sale made in an action to partition among the original owners or their heirs or devisees.

Upon the trial the defendant was permitted to testify that he purchased the lot in question of Gurnee, agreeing to pay therefor the sum of $72.50; that he entered possession and buried his daughter therein more than twenty years before this action was brought, and has since buried his wife and five grandchildren therein.

Inasmuch as Gurnee was one of the tenants in common, and at the time this action was tried was deceased, there may be some question as to the right of the defendant to testify to the personal transaction he claims to have had with him.

We shall, therefore, for the purposes of this action, disregard that evidence, and from that which remains determine whether the trial court properly directed a verdict.

It is contended that Blanche had no authority to act for the owners in selling burial lots, but it appears that he did so act for a number of years with their knowledge; that he collected money and paid the liabilities of the owners; kept a book in which the sales of lots were entered, with the amounts paid, etc. These facts fully appear from the testimony of McKenzie, the secretary of the association, and from the widow of Blanche. On the book kept by Blanche of the sale of the burial lots, there appears the following entry:

"April 22, 67, John Treadway, 192- 21x23 483 $72.50."

From which we understand that on April 22, 1867, he sold