through the basin. The bridge|
was a swing bridge which had been
erected by the claimant, with the
consent of the state. In the spring
of 1886, before the opening of
navigation and when there was no
water in the canal, the state re-
moved the bridge, erected in its
place a stationary bridge at the
same level as the tow-path, offer-
ing to allow claimant to erect a new
elevated bridge, which offer it did
not appear he accepted. By reason
of the change, P. was unable to
move two boats which he had at
that time, one in the basin and the
other in the dry-dock. The court
found that there was no liability
on the part of the state. Held,
error; that while the privilege
enjoyed by P. was revocable at
the will of the state, it included
an obligation which the state could
not withdraw from arbitrarily,
when this would inflict severe loss
upon P.; that the erection of the
bridge by him and his allowance
of the discharge of the surplus
waters across his land constituted
presumably in some measure the
consideration for the privilege and,
having permitted him to place his
boats inside the bridge and there-
after withdrawn the water, the
state was bound to afford him a
reasonable opportunity to remove
them; and that this obligation was
not met by the offer to allow him
to erect a new bridge. Putnam v.
State of New York.
344
1. A corporation organized under
the act of 1877 (Chap. 228, Laws
of 1877), providing for the organi-
zation of exchanges or boards of
trade, may be disolved by the court
upon petition and consent of a
large majority of its trustees and
members, when it appears that it
is doing no business, because of
the diverse interests of its mem
bers, although the corporation is
solvent and a minority of the trus-
tees and members oppose the disso-
lution. (Code Civ. Pro. § 2419-
2432.) Hitch v. Hawley.
2. When it appears that the inter-
ests of the stockholders of such a
corporation are so discordant as
to prevent efficient management,
and that a large majority of its
trustees and members wish to wind
up its affairs by a dissolution, the
fact is established that the disso-
lution will be for the interests of
the stockholders.
Id.
1. Courses and distances mentioned
in a conveyance must yield to the
lines as actually and duly made by
survey and described by marks and
monuments, and while a line is
given as running between two
points will be presumed to be a
straight one, where a reference is
made to a survey which shows
the line not to be a straight one,
it will control. Seneca Nation In-
dians v. Hugaboom.
492
In an action of ejectment brought
by plainti pursuant to the act of
1845 (Chap. 150, Laws of 1845),
plaintiff claimed title under the
treaty of 1802, between it and the
Holland Land Company, and a
deed executed in pursuance
thereof, by which a portion of the
south line of the lands reserved and
released to said plaintiff is de-
scribed as running west from a
post a certain number of chains,
The description closes with a state.
ment that the lands described were
to be held by plaintiff "in the
same manner and by the same
tenor as the lands reserved" by
plaintiff by a treaty or convention
entered into September 15, 1797.
The description also referred to a
meridian line at the east line of the
tract and to artificial monuments
placed at the corners. Under the
treaty of 1797 a survey of the
lands was made and the line plainly
marked; the meridian line referred
to in the treaty of 1802 was located
by and the monuments placed
under that survey. If the south
line was to be taken as a straight
one between the two points given,
the land in question would be in-
cluded in the reservation, but it
was not included by the south
line as shown by the survey. It
also appeared that the south line
as defined by the marks and monu-
ments had been treated and desig
nated as the southern boundary
upon the premises that they were
to be rented and reference was
made therein to the comptroller for
information, his purpose being in
accordance with custom to procure
a satisfactory offer before advertis-
ing. Plaintiff having obtained
from the comptroller a proposed
rental and a diagram, told defend-
ant that he had the property to
rent; they went together to see
the comptroller and defendant
made an offer which was accepted
by that officer; defendant signed
a memorandum which contained a
provision that he “should pay all
brokerage." Plaintiff was not em-
ployed or invited by the comp
troller to procure offers. The
amount of plaintiff's commission
was stated by him; this defendant
agreed to pay if he obtained the
lease at his bid which he did.
Held, that the evidence justified a
finding of a consideration sufficient
to support defendant's promise;
and so, that a motion for a nonsuit
was properly denied. Myers v.
Dean.
4. Defendant's evidence was to the
effect that plaintiff was not em-
ployed by and performed no serv-
ices for him, and that his agency
was in no sense a procuring cause
in obtaining the lease. The court
charged that if defendant stated
to plaintiff before the lease was
obtained that if he obtained the
lease on his offer he would pay the
commissions, plaintiff was entitled
to recover. Held, error; as with-
out some employment of or the
performance of some service by
plaintiff, there was no considera-
tion for defendant's promise; and
that the question of employment
or service was for the jury.
3. In an action to recover for serv-5.
ices, alleged to have been per-
formed by plaintiff, as broker in
procuring for defendant, at his re-
quest, a lease of property belong-
ing to the city of New York, the
power to lease which was in the
board of commissioners of the sink-
ing fund, the lease to be for the
highest rental bid at public auction
or by sealed bids after public ad-
vertisement (§ 170, chap. 410, Laws
of 1882), plaintiff's evidence was to
this effect: notices were posted
In an action by a real estate broker,
living and doing business in Penn-
sylvania, to recover the compensa-
tion agreed upon for his services in
effecting a sale for defendant, of
certain lands in that state, the
answer alleged in substance that
under the statute laws of that state,
all persons are forbidden from en-
gaging in that business, without
paying the prescribed fee and re-
ceiving a commission, and also are
prohibited from recovering any
compensation or commission for
such services, which statutes were
referred to and the material provis-
ions set forth, that plaintiff when
he rendered the alleged services
had not paid the fee, that the
highest appellate court in that state
had "in a proper case brought be
fore it for review," decided that a
real estate broker not having paid
the fee or obtained a commission
could not recover compensation.
Upon demurrer to the answer, held,
that it set forth facts sufficient to
constitute a defense; that it was
not essential to set forth the facts
appearing in the case referred to, or
to give its title or where reported;
but the averment that the courts
of Pennsylvania had in
a proper
"made the decision was suffi-
cient to allow proof that a decision
had been made decisive of this case.
Angell v. Van Schaick.
6. Also held, that the validity of the
contract was to be determined by
the laws of Pennsylvania.
la.
1. By a building contract, the con-
tractor agreed "to put in a sewer
to connect the houses to be erected
with another sewer, and to make
water connections. At the time of
filing a mechanics' lien, there was
nothing due under the contract,
and all the payments called for by
it had been made, except a sum
due when the contract was com
pleted. The contractor substan-
tially performed the contract in
other respects, but omitted to put
in the sewer or to make the water
connections, and the owner, after
notice to the contractor, completed
the work in these respects at an
expense of $180. The whole con-
tract price was $2,850. The owner
had paid $2,020. There was no
provision in the contract that the
owner should complete the work
in case the contractor failed to do
so, or any understanding that the
former should proceed with the
work, or any failure on his part to
perform his obligations under the
contract. In an action to foreclose
the lien the court adjudged plain-
tiff to be entitled to a lien for the
difference between the balance un-
paid on the contract and the sum
Where, under a building contract,
by which the contract price is to
be paid by installments, a demand
is made by the contractor for the
installment due, and payment is
refused, the contractor may law-
fully refuse to go on with the con-
Id.
4. Where, by a building contract,
payments are only to be made upon
certificates of an architect, the re-
fusal of the architect to give to
the contractors a certificate, as re-
quired, if based upon an unreason
able requirement, will furnish no
protection to the owner.
Id.
As to what amounts to substan-
tial performance of building contract.
See Oberlies v. Bullinger. (Mem.)
598
Under the provision of the act
of 1875 ($ 10, chap. 611, Laws of
1875), providing for the incorpora-
tion of certain business corpora-
tions, which requires that the
directors of a corporation organ-
ized under it shall, at their election,
and throughout their term of
office," be stockholders, whenever,
and as soon as, a director parts
with all beneficial interest in and
control over his stock and causes
the officers of the corporation to
have knowledge of such fact, by
request that a proper transfer be
made on the corporate books, the
statute operates to divest him of
his office, and he ceases to be a
director. (BRADLEY, J.. dissent
ing.) C. N. Bank v. Colicell. 250
2. The provision of said act, declar-12.
ing that no transfer of stock ** shall
be valid for any purpose what-
ever, except to render the trans-
feree liable for debts, until it shall
have been entered in the stock
transfer-book required to be kept
by the company, is only for its
protection and does not operate to
prevent the passing of the entire
legal and equitable title in the
shares, as between the parties, by
the delivery of the certificate with
assignment and power of transfer.
(BRADLEY, J., dissenting.)
Id.
3. In an action against the alleged
directors of such a corporation to
recover a debt of the corporation
because of failure to file an annual
report in January, 1886, as required
by the act (18), it appeared that
defendant C., in November 5, 1885.
assigned and delivered his certifi-
cate of stock, which was for eighty
shares, to J., the secretary of the
company, for the purpose of ter-
minating his connection with the
company. J. accepted the assign-
ment, C. asked for the transfer
book, but the company had no
such book at that time, and he was
told it was not necessary. A few
days later, a transfer-book having
been obtained, the assignment was
entered therein. J., however, is-
sued a new certificate to himself
for only seventy-five shares, and to
C., without his knowledge, a cer-
tificate for five shares, which J.
induced him to accept, but not
with any understanding that he
should be a director. The debt in
question was incurred by the cor-
poration in June, 1886. Held
(BRADLEY, J., dissenting), that C.
ceased to be a stockholder on his
assignment of stock, and thereupon
ceased to be a director, and so,
was not liable.
IJ.
1. To make a legal and permanent
appropriation by the State, of land
or water for the use of a canal, the
quantity must be definitely ascer-
tained and described so that the.
owner may know how much has
been taken and what he is entitled,
to be compensated for.
v. State of N. Y.
In 1867, the canal board passed a
resolution, by its terms approving
a map for the permanent appro-
priation of the Port Byron water
power on the Owasco outlet for
the feeder to the Erie canal," and
declaring that "the water and
lands necessary for said feeder are
hereby permanently appropri-
ated."
The owners of the water
power filed their claim for dam-
ages, and, in 1870, while it was
pending, the canal board passed a
resolution defining the quantity
of water intended to be taken by
the former resolution, by which
it was fixed at a certain number
of cubic feet per minute, not the
whole stream. In 1871, an award
was made to the owners, which
was paid. In 1879, the state ap-
propriated all the water in the
race-way. Upon a claim of dam-
ages for this appropriation, held,
that the resolution of 1867 was too
indefinite to effect a legal appro-
priation, and was void; that the
state officers, therefore, had power
by subsequent action to make an
appropriation of a limited quan-
tity of water; and that the pay-
ment for this limited appropria-
tion did not defeat the claim for
the residue when it was taken. Id.
3. In 1869, before trial of the first
claim, the canal appraisers made a
report to the legislature to the ef-
fect that the appropriation was of
the entire water power. Held,
that as the claimant was not a
party to it, the report was not
binding upon him.
Id.
Van Wyck v. Allen (69 N. Y. 62), dis-
tinguished. Allan v. State Steam-
ship Co.
93
Angell v. Van Schaick (56 Hun, 247),
Hayde reversed. Angell v. Van Schaick.
5331
187
Whitbeck v. N. Y. C. R. R. Co. (36 | Luetchford v. Lord (57 Hun, 572), re-
distinguished. Lahey v. Kortright. 2. Plaintiff's complaint alleged in
substance that, to induce defend.
|