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C. L. Andrus, for appellant.

George A. Fisher, for respondent.

PER CURIAM. Judgment and order affirmed, with costs.

SEWELL, J. (dissenting). The only cause of action arising from the facts alleged in the complaint is that of waste. The proof shows that when the waste was committed the property was owned by the plaintiff and the six heirs of Lucretia B. Hoolihan, deceased, as tenants in common; that the plaintiff owned an undivided one-half, and the interest of each of the heirs, of which the defendant was one, was one-twelfth. It also appears that the property in question was sold under the foreclosure of a purchase-money mortgage in July, 1902, that it was purchased by the defendant, and from that time the plaintiff has not been in possession or had any interest therein. The question is therefore presented whether the law affords any remedy to one who was a co-tenant at the time the waste was committed, after his interest in the land has been extinguished.

The action of waste at common law could only be maintained "by him that has the immediate inheritance" (Bates v. Shraeder, 13 Johns. 260; Carris v. Ingalls, 12 Wend. 70), and one tenant in common was not liable to his co-tenant in an action of waste for the injury done to their common estate. Blackstone says (2 Com. 283): "In our ancient common law waste was not punishable in any tenant save only three persons: guardian in chivalry, tenant in dower, and tenant by the curtesy, and not in tenants for life or years."

This rule was altered by the Revised Statutes, so as to permit an heir or a person seised of an estate of remainder or reversion to maintain the action. It was also there provided that:

"If one joint tenant or tenant in common shall commit waste of the estate held in joint tenancy or in common, he shall be subject to an action of waste at the suit of his co-tenant or tenants." Rev. St. (2d Ed.) p. 334, pt. 3, c. 5, tit. 5, § 3.

And that:

"If the action be brought by a tenant in common or by a joint tenant against his co-tenant and the plaintiff recovers judgment therein, he shall be entitled, at his election, either to take judgment for treble the damages found by the jury, or have partition made of the premises so held in common or joint tenancy." Rev. St. (2d Ed.) p. 335, pt. 3, c. 5, tit. 5, § 11.

These provisions in respect of tenancies in common and joint tenancies were combined to form section 1656 of the Code, which is the only authority for this action. An examination of that section wil show that the right of action is only given to a tenant in common or joint tenant against his co-tenant. The words "tenant in common" and "co-tenant" are here used in their strict technical sense, and signify one who has an existing estate as tenant in common at the time the action is brought. If the Legislature had intended to give the remedy to one who had parted with his estate, and without regard to the relation of the parties at the time of the commencement of the action, it would have said so in clear and explicit language, as it did in section 1652, where an heir or devisee is given an action for waste committed in the time of his ancestor or testator, as well as his own

time, and the grantor of a reversion is given an action for waste "committed before he aliened the same." This view of the statute is strengthened by the further provision that:

"If the plaintiff recovers therein, he is entitled, at his election, either to a final judgment for treble damages, as specified in the last section, or to have partition of the property, as prescribed in the next two sections [1657 and 1658]." From these provisions it seems that the Legislature had in mind persons having a right to a partition of the property injured, and intended to restrict the action to them. They certainly do not warrant the conclusion that the atcion may be maintained by one not entitled to have partition of the premises alleged to have been wasted or injured by the defendant. The case of Robinson v. Wheeler, 25 N. Y. 252, is not decisive of the question presented, as claimed by the respondent. In that case the plaintiff was seised of the inheritance when the waste was committed and at the time of bringing the action, and the question was whether a reversioner could maintain an action after alienation of his estate for the injury done to the inheritance when he was so seised. It was held that he could by a divided court, and that right is now expressly given in section 1652. The question whether a tenant in common could maintain such an action after that particular relation and estate have ceased to exist was not involved or referred to in Robinson v. Wheeler.

The reason for not giving an action for waste to a tenant in common or joint tenant against a co-tenant after that relation has expired is obvious. A co-tenant out of possession may at any time enter into an equal enjoyment of the premises, or he may protect himself by a partition or by an injunction, and his neglect to do so may be regarded as an assent to the sole occupation and use of the other. However this

may be, there seems to be no remedy after title is divested. I am of the opinion that the plaintiff is not entitled to recover in this action.

CHESTER, J., concurs.

MOEST v. CONTINENTAL CASUALTY CO.

(Supreme Court, Equity Term, Erie County. April, 1907.)

1. INSURANCE-ACTION ON POLICY-LIMITATION BY PROVISION OF POLICY. Where an accident insurance policy provided that no action should be brought to recover for any benefit, other than the weekly benefit, unless commenced within nine months of the date of the accidental injury, an action for the death benefit, commenced more than nine months after the death of insured, was barred; the provision relating to losses by death, and not alone to losses from injuries not resulting in death. [Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1544, 1546.]

2. SAME-CONSTRUCTION.

A proviso in an accident insurance policy that it should not be construed or held to cover any person under the age of 18 or over the age of 60 years, being equally susceptible of the construction that it related to the date of issuing the policy and that it related to the date of the accident, will be taken to relate to the date of issuance; such contracts being construed strictly against the company and in favor of insured.

[Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, § 292.]

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Action on accident insurance policy to recover death benefit by Mary Moest against the Continental Casualty Company. Trial by the court by agreement of parties. Judgment for defendant.

Ford White, for plaintiff.

W. S. Jenkins, for defendant.

POUND, J. Defendant issued a certificate of insurance by which it undertook to insure Henry Moest, husband of plaintiff, against personal injury for one year from February 4, 1905. In case death resulted from such injuries, defendant agreed to pay plaintiff $5,000. The certificate provided that:

"No suit or proceeding at law or in equity shall be brought against this company for weekly benefits unless the same be brought within 6 months of the termination of total disability, or, in case the same shall last more than 200 weeks, within 30 months of the commencement thereof, nor for any other benefit unless within 9 months of the date of the accidental injury."

Moest received an injury July 3, 1905, which resulted in his death July 8, 1905. This action was begun on October 1, 1906, more than 9 months after the death of insured.

It is claimed by the plaintiff that the above provision of the certificate does not relate to losses by death, but only to injuries not resulting in death. The words "accidental injury," in a policy of this kind, were construed in Cooper v. U. S. M. B. Ass'n, 132 N. Y. 334, 30 N. E. 833, 16 L. R. A. 138, 28 Am. St. Rep. 581, to mean, so far as the plaintiff is concerned, the death of the husband as the result of the accident, rather than the date of the accident itself. In that case it was held that plaintiff's action, brought more than the period specified after the accident, but within the period specified of the husband's death, could be maintained. The provision of the certificate above quoted should so be construed as to give it effect, if possible, as it was clearly intended to cover all benefits, death benefits included. I think that it applies here, and is a bar to plaintiff's action.

The policy contained a proviso in fine print towards the end that it "shall not be construed or held to cover any person under the age of 18 or over the age of 60 years." On February 2, 1905, when the policy was extended for one year, insured was less than 60 years of age, having been born on April 16, 1845; but at the time of his death, and also at the time of the accident, he was upwards of 60 years of age, and defendant claims that it is not liable on said policy by reason of such proviso. As the words above quoted are ambiguous. and susceptible equally of the construction which relates the words "60 years" to the date of issuing the policy and to the construction which relates the words to the date of the accident, I shall follow the rule which requires such contracts to be construed most strictly against the company, and hold that plaintiff would be entitled to recover, were it not for the lapse of time. The company had notice at the time of writing the policy that insured was 59 years old. Yet it insured him for a full year, and took from him a full year's premium. If it meant to take his money without performance on its part

in case of death within the year, it should have chosen more accurate language. Let decision be prepared accordingly.

PEOPLE ex rel. BARNEY v. WHALEN, Secretary of State. (Supreme Court, Appellate Division, Third Department. May 8, 1907.) CORPORATIONS-POWERS-CONSTRUCTION OF ACTS OF INCORPORATION.

Business Corporation Law, § 2 (Laws 1892, p. 2642, c. 691, as amended by Laws 1895, p. 445, c. 671, Laws 1896, p. 314, c. 369, § 1, Id. p. 428, c. 460, and Laws 1901, p. 1279, c. 520), prescribes what a certificate of incorporation filed thereunder must contain, and provides that the certificate may contain any other provision for the regulation of the business of the corporation and any limitation upon its powers and upon the powers of its directors and stockholders which does not exempt them from any obligation imposed by law. General Corporation Law, § 10 (Laws 1892, p. 1804, c. 687, as amended by Laws 1895, p. 449, c. 672), contains substantially the same provision, and declares that no corporation shall exercise any corporate powers not given by law or not necessary to the exercise of the powers so given. Stock Corporation Law, § 33 (Laws 1892, p. 1833, c. 688, added by Laws 1893, p. 1436, c. 638, and amended by Laws 1901, p. 314, c. 130), gives a domestic stock corporation, with the consent of twothirds of its stockholders, the right to sell its property and franchises to a domestic corporation engaged in a business of the same general character, and also provides that a domestic corporation, the principal business of which is carried on in, and the principal tangible property of which is located within, a state adjoining New York, may, with the consent of the holders of 95 per cent. of its capital stock, sell its property situate without the state, not including its franchise, to a corporation organized under the laws of such adjoining state. Held, that a clause in a certificate of incorporation, proposed to be filed under business corporation law, giving the directors of the corporation, with the consent of the holders of two-thirds of the outstanding capital stock, the right to dispose of the whole of the property of the corporation, except its franchise, to any person or corporation, domestic or foreign, was not authorized by law, and hence a writ of mandamus to compel the filing of the certificate was properly denied.

Appeal from Special Term, Albany County.

Motion by the people, on relation of Charles T. Barney, for a peremptory writ of mandamus against John S. Whalen, Secretary of State. From an order denying the motion, relator appeals. Affirmed. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Charles H. Tuttle, for appellant.

William S. Jackson, Atty. Gen., and Frank White, Deputy Atty. Gen., for respondent.

CHESTER, J. The order appealed from denies the application of the relator for a peremptory writ of mandamus requiring the respondent to file in his office a certificate of incorporation. The Secretary refused to file the certificate because there was contained therein the following clause:

"The directors may, with the consent of the holders of two-thirds of the capital stock issued and outstanding, sell, assign, transfer, or otherwise dis

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pose of the whole of the property of the corporation, not including franchises, to any person or corporation, domestic or foreign."

The respondent, as Secretary of State, was not required to file a certificate of incorporation if it contained provisions unauthorized by law. People ex rel. Blossom v. Nelson, 46 N. Y. 477. Section 2 of the business corporation law (Laws 1892, p. 2642, c. 691, as amended by Laws 1895, p. 445, c. 671, Laws 1896, p. 314, c. 369, § 1, Id. p. 428, c. 460, and Laws 1901, p. 1279, c. 520), under which it was proposed to file the certificate in question, prescribes what a certificate of incorporation thereunder must contain. The clause objected to is clearly outside of any of the requirements there specified. That section also contains the following provision:

"The certificate may contain any other provision for the regulation of the business and the conduct of the affairs of the corporation and any limitation upon its powers and upon the powers of its directors and stockholders which does not exempt them from any obligation or from the performance of any duty imposed by law."

Substantially the same provision is also included in section 10 of the general corporation law. Laws 1892, p. 1804, c. 687, as amended by Laws 1895, p. 449, c. 672. That section also provides that:

"No corporation shall possess or exercise any corporate powers not given by law or not necessary to the exercise of the powers so given."

If, therefore, the clause in question, which the respondent objected to, was one which purported to give the proposed corporation powers, or the right to exercise powers, not given by law, he was justified in withholding his assent to such filing. That clause is not one regulating the business or relating to the conduct of the affairs of the corporation, but is rather one for the purpose of ending or closing up its business or affairs. It is not one limiting its powers or those of its directors and stockholders, but is one intended to enlarge such powers. It assumes to give the directors of the corporation, with the consent of the holders. of two-thirds of the outstanding capital stock issued, the right to dispose of the whole of the property of the corporation, except its franchises, to any person or corporation, domestic or foreign.

The statutory power to sell the property of a corporation is found in section 33 of the stock corporation law. Laws 1892, p. 1833, c. 688, added by Laws 1893, p. 1436, c. 638, and amended by Laws 1901, p. 314, c. 130. That section gives a domestic stock corporation, except a railroad corporation, and except as otherwise provided by law, with the consent of two-thirds of its stockholders, the right to sell and convey its property, rights, privileges, and franchises, or any interest. therein, to a domestic corporation engaged in a business of the same general character; and it also provides that a domestic corporation, the principal business of which is carried on in, and the principal tangible property of which is located within, a state adjoining the state of New York, may with the consent of the holders of 95 per cent. of its capital stock sell and convey its property situate without the state, not including its franchise, to a corporation organized under the laws of such adjoining state.