Harris v. Norvell. Within the meaning of the section in question, he is truly both a laborer for, and a servant to his employer, and is entitled to recover of the stockholder for his services as reporter for the newspaper, the success of which depends greatly on his labors. So much for the reporter. As the ground of demurrer under consideration is that the complaint does not state facts sufficient to constitute a cause of action, and a good ground of action being found to exist, it may be considered that the demurrer is not well taken. But in respect to the "city," or "assistant city editor," of the newspaper association, if not an officer of the corporation, which he is not averred to be, I think he is also a laborer and servant thereof within the meaning of the statute in question. If an engineer,-civil, who intelligently contracts and draws plans,-or mechanical, who superintends the machinery and works of a corporation,-is its servant, the editor, "city" or "assistant," employed, and whose service it is, to prepare, superintend, revise and correct a newspaper, or a department thereof, for publication, is within the same terms, and is entitled to redress against the stockholders of the corporation employing him for his work. As to the other ground of demurer,—that there is a defect of parties defendant,-it is not well taken. The action being under the 18th section of the act, the stockholders are jointly and severally liable. There must be judgment for the plaintiff, on the demurrer, with liberty to defendant to answer on payment of costs. Robins v. Gould. ROBINS v. GOULD. N. Y. Supreme Court; Special Term, October, 1876. ALLOWANCE ON DISCONTINUANCE. It is proper, in difficult and extraordinary cases, to require payment of an allowance in addition to costs, as a condition of leave to discontinue.* Motion for allowance in addition to costs, as a condition for permitting plaintiff to discontinue. The action was in the main similar to those of Chatterton v. Fisk (p. 88 of this vol.), and Mills v. Gould (p. 93). Thomas G. Shearman (Shearman & Sterling, attorneys), for the motion.-I. It is constant practice to grant an allowance upon a discontinuance, when it appears that large expenses have been incurred before trial. In Troxell v. Haynes (Common Pleas, 1875), Judge ROBINSON granted the full allowance of five per cent. on a discontinuance. In Zaun v. Phillips (Superior Court, Jan. 14, 1875), an allowance was granted by SANFORD, J., on a discontinuance, the case not having approached trial; and the order was affirmed on appeal to the general term. In a recent case * See to the same effect, Bright v. Milwaukee R. R. Co., p. 14 of this volume. I am informed that in Dusenbury v. Hiler, in the New York Supreme Court, CURTIS, C. J., on October 13, 1876, after argument upon the power of the court to do so, granted an allowance of one hundred dollars, as a condition of discontinuance, upon the application of two defendants where there were a number of other parties defendants. In the case of Duperey v. Phoenix, decided October 17, 1876, the same justice decided that a trial fee of thirty dollars was properly taxable when a cause was discontinued while upon the day calendar, although it had not actually been called for trial. Klein v. Wolfsohn. in this court, the cause being called for trial, plaintiff asked leave to discontinue; and Mr. Justice BARRETT granted a dismissal with an allowance of $250. II. The facts of this case establish a strong claim for an allowance. Wheeler H. Peckham (Miller, Stoutenburgh & Peckham, attorneys), for plaintiffs. BARRETT, J.—I have no doubt that this case was an extraordinary and difficult one within the meaning of the Code. If the issues were at all similar to those in Taylor against the same defendant (tried before me two months since), the questions of law and fact were delicate and complicated. It certainly was not an ordinary action for breach of contract. The plaintiff, on the proofs contained in Mr. Shearman's affidavit, is fairly entitled to a moderate allowance, and I think that, considering the amount involved, and the labor and expense stated, $500 would be but reasonable. KLEIN v. WOLFSOHN. N. Y. Supreme Court, First Department; Special Term, September, 1876. DIVORCE. A divorce cannot be granted for the husband's fraud in inducing the marriage by false representations as to his character and property.* Under a verified complaint alleging a marriage, a divorce cannot be granted on evidence, taken in the absence of defendant, that the alleged marriage never had been consummated, and was represented to, and supposed by plaintiff, to be merely a betrothal. *To similar effect, Wier v. Still, 31 Iowa, 107. See Youngs v. Carter, p. 136 of this vol., note. As to the woman's fraudulent concealment of her pregnancy,— see Carris v. Carris, 24 N. J. Eq. 516. Klein v. Wolfsohn. Laura Klein brought this action against Richard Wolfsohn, for a divorce. VAN VORST, J.-By her verified complaint, the plaintiff alleges that on May 28, 1875, she was married to the defendant. She avers that she was induced to consent to the marriage, by certain representations made to her by the defendant, which she believed at the time of the marriage to be true, and by her ignorance of facts concealed from her by defendant. The false representations of which complaint is made, were in respect to the character and property of the defendant; he having alleged substantially, that he was a man of good character, and was worth $15,000, and that from his income he could support himself and plaintiff. The plaintiff avers, that the defendant was, and is in fact, a man of bad character, and was not worth the amount he claimed, and had no property or means. And that upon discovering the falsehood of his statements, and on June 15, last, she refused, and still refuses to live with him. Upon such allegations in a complaint, if true, I do not think the court is authorized to dissolve the marriage tie. Before entering upon the marriage, the plaintiff should have informed herself, both as to the character and means of the defendant, and if she blindly relied upon his representations, she cannot properly ask the court to release her from a solemn marriage, so heedlessly formed. It would not answer to make this case a precedent for dissolving a marriage, upon such grounds. The fraud, for which a court of equity would be justified in decreeing a dissolution, is clearly not of the character indicated by the complaint. And if judicial favor was given to this application, it would open the door to a class of cases, not heretofore entertained, and Youngs v. Carter. disturb the sanctity with which the marriage bond should be regarded. It is not to be annulled upon every ground of false representation, which is sufficient to cancel an ordinary contract. Another ground is urged in support of this application, that the plaintiff did not understand the ceremony to be a marriage, but that it was represented to her to be a betrothal simply, and that the marriage has not in fact been followed by cohabitation. This ground is not alleged in the complaint, and would appear to be inconsistent with the statement, sworn to by the plaintiff, that she was married to the defendant, and that her consent to the marriage had been obtained by the false representations of the defendant. For the reason that the new ground, now urged, was not alleged in the complaint, and that the defendant has had no opportunity to answer it, I cannot consider the ex parte evidence taken upon that subject. The report of the referee in this case cannot be confirmed, and the application for a dissolution of the marriage for the reasons urged is denied.* *But a secret voluntary conveyance by the man, on the eve of marriage, of land he had represented to her he owned, and with intent to prevent an inchoate right of dower arising, may be set aside, as to the dower. So held, by VAN VORST, J., in N. Y. Supreme Court, First Department; Special Term, February, 1875. The action was by JENNIE YOUNGS against HANNAH M. CARTER, and NETTA YOUNGS. Luther R. Marsh, for the plaintiff. Stephen W. Fullerton, for the defendant. Van Vorst, J.-When Daniel S. Youngs asked the plaintiff to become his wife he was a widower, of the age of fifty-two years and upwards, and she twenty-three years of age. He had two children by a former wife, daughters, both of whom were of full age. He was, at the time of the proposed marriage to the plaintiff, |