Corporations. 20. If the common council neglect to proceed and open the street, the court may grant a mandamus to compel them to proceed, when applied to by any person interested in the proposed improvement. (Id.) 21. And a person who has an interest in the proceedings, to enable him to recover the damages awarded to him by the commissioners, has such an interest as authorizes him to make the application. (Id.) 22. And a mandamus will be granted in such case, where "the final determination of all the proceedings," in the way pointed out by the city charter has not been had, which is required to create the liability of the city to pay the award. (Id.) See CONSTITUTIONAL LAW. (Matter of Oliver Lee & Co.'s Bank, 21 N. Y. R., 19.) 23. Where a referee found as a fact that the judgment against a moneyed corporation was rendered upon a bill of exchange drawn by its agent upon and accepted by the corporation, held sufficient to sustain a recovery against the stockholder personally. (Belmont agt. Coleman, 21 N. Y. R., 96.) 24. But whether the mere recovery of a judgment against such corporation is any evidence of the indebtedness in an action against the stockholder to enforce his personal liability. Quere? (Id.) 25. A manufacturing corporation organized under the general act, (1848.) that omits to publish in the first twenty days of January the statement required by § 12 of that act, imposes a personal liability upon the trustees in office for all corporate debts existing while they are in default, but not, it seems, for debts contracted after their retirement from office. (Boughton agt. Otis, 21 N. Y. R., 261.) 26. A trustee coming into office after a default, is personally liable for such debts, only as are contracted while he is in office, and before a report is made and published, (Id.) 27. Associations organized under the general banking law, are within the provisions (1 R. S., 603, § 4,) prohibiting any incorporated company from making any transfer or assignment in contemplation of insolvency. (Robinson agt. Bank of Attica, 21 N. Y. R., 406.) See TAXES AND ASSESSMENTS. (Oswego Starch Factory agt. Corporations. Dolloway, 21 N. Y. R., 449; and Onderdonk agt. City of Brooklyn, 32 Barb., 505.) 28. A draft issued by a banking association, and taking effect by delivery, but post dated, is, it seems, within the prohibition of the statute (1840) against bills or notes not payable on demand. (Oneida Bank agt. Ontario Bank, 21 N. Y. R., 490.) See FOREIGN CORPORATIONS. national Bank, 21 N. Y. R., 542.) (Bank of Toledo agt. Inter 29. The recovery from a stockholder in a corporation organized under the act of February 17, 1848, of an amount equal to the amount of his stock, by a creditor of the corporation, would be a defence to a suit brought against such stockholder by any other creditor of such company. (Woodruff & Beach Iron Works agt. Chittenden, 4 Bosw., 406.) 30. An averment in a complaint against a stockholder of an incorporated company, that the corporation is insolvent, is not necessary, except where the charter makes the liability of the stockholders depend upon insolvency, or that the creditor's remedy against the corporation be first exhausted. (Perkins agt. Church, 32 Barb., 84.) 31. Where an action is brought against a stockholder of a bank, by a creditor, on a claim due from the bank, the corporation is not a necessary party. (Id.) 32. Though a bank has no authority to enter into a general busi ness of consigning goods for sale, yet it may be permitted to resort to that method of selling goods in its possession which it has legally received in payment of debts. (Id.) See RAILROADS. (People agt, Pierce, 32 Barb., 138; and Black River R. R. Co., agt. Barnard, 32 Barb., 258.) 33. An action for negligence will lie against a municipal corporation, where they have entered into a contract for doing certain work, and which has been fully performed by the contractor, and the corporation neglects to lay, confirm and collect the assessment for the costs of the work. (Beard agt. City of Brooklyn, 32 Barb., 142; also Richardson agt. same, id., 152.) 34. An action by a bank against a director and its cashier for damages arising from an alleged conspiracy to defraud the bank on a sale and transfer of its stock, sustained, and held, that no laches on the part of the plaintiff, short of the statute of limita Corporations. tions, would constitute a defence to the action. (Ilion Bank agt. Carver, 32 Barb., 230.) 35. An action instituted under the statutes of 1847 and 1849, "requiring compensation for causing death by wrongful act, neglect or default," may be sustained by the plaintiff as administrator of his deceased wife, for the loss of her life, where the mother of the deceased is the next of kin. (Green agt. Hudson R. R. R. Co., 16 How., 263; S. C., 32 Barb., 260.) 36. A municipal corporation has power, by ordinance, to superadd penalties for acts made penal by the laws of the state. Under the ordinance of the city of Brooklyn of July 3, 1850, to prevent the sale of commodities and liquors on Sunday, the party complained of is not liable to two penalties for the same act, to wit: one for exposing to sale, and the other for selling. (City of Brooklyn agt. Toynbee, 32 Barb., 282.) 37. A subscription for shares of the capital stock of a manufac turing company is a legal obligation and a good consideration for the giving a bond and mortgage to secure the payment of such subscription. (Battershall agt. Davis, 32 Barb., 323.) 38. Where a stockholder of a corporation has joined in an application to the court for the appointment of a receiver, to sell the assets of the corporation, he cannot thereafter question the va lidity of the appointment of the receiver, or the order directing the sale. (Id.) 39. The creditors of a dissolved corporation have an equitable lien upon its assets, in the hands of a person for the payment of their debts. (Tinkham agt. Borst, 32 Barb., 407.) See JUDGMENTS. (Sharp agt. Mayor, &c., New York, 32 Barb., 572; S. C., 18 How., 97.) See ATTORNEYS AND COUNSELLORS. (Sharp agt. Mayor, &c., New York, 32 Barb., 578; S. C., 19 How., 193.) 40. Upon the dissolution of a corporation the title to its real property does not revert to the original owners or grantors, but vests in the receiver, and he is to administer it, together with the personal property, for the benefit of the creditors and stockholders. (Owen agt. Smith, 32 Barb., 641.) 41. Where an individual pays the amount of assessment on his property, which is applied by the officers of the corporation to the wrong property, his remedy is to enforce the payment as an Costs. exoneration of his land from the assessment. He cannot recover it back on the ground of such misapplication. (Perdue agt. Mayor, &c., New York, 12 Abb., 31.) 42. The statute of 1860, which provides that the supervisors of New York shall raise a sum to pay whatever amount, within a certain limit, should be found due to certain contractors, and authorizing the comptroller to pay the amount when the same should be judicially ascertained, does not require that the claimants should obtain a judicial determination by action, before proceeding by mandamus against the comptroller. On application for mandamus, the court can order a reference to determine the amount claimed. (People agt. Haws, 12 Abb., 70.) COSTS. 1. An attorney has a lien to the extent of his costs, not only upon the judgment obtained by him, but also upon all the incidents of the judgment or securities for its payment, including the undertaking of bail in the action. (Shackleton agt. Hart, Ante, 39.) 2. He can maintain an action upon such undertaking, in the name of his client, to enforce the collection of his costs; and the client cannot, by any release or discharge, prevent a recovery, or affect such right of the attorney. (Id.) 3. A court of justice of the peace has jurisdiction of such action. (Id.) 4. Where a claim against executors or administrators is referred under the statute, the defendants, (executors or administrators,) where they succeed, are entitled to costs against the plaintiff, as in an action. (Agreeing with Linn agt. Clow, 14 How. Pr. R., 508; and Boyd agt. Bigelow, id., 511.) (Munson agt. Howell, Ante, 59; S. C., 12 Abb., 77.) 5. It seems, that where a judgment against the mayor, &c., of the city of New York, is vacated on application of the comptroller under the statute, for fraud alleged, and a new trial ordered, the plaintiff will not be allowed costs, as terms upon which the judg ment is vacated. In this case, $10, costs of the motion to each party, was ordered to abide the event of the action. (Outwater agt. Mayor, &c., of New York, Ante, 213.) 6. It is no ground to vacate a judgment for costs entered by the defendant, that the costs were not taxed, where the costs are on Costs. notice relaxed and the judgment corrected accordingly. (Henry agt. Bow, Ante, 215.) 7. An extra allowance, under $309 of the Code, awarded to the defendants, where the plaintiffs at the trial suffered judgment to be taken against them as upon a non-suit, upon the ruling of the judge that the evidence proposed to be given in their opening would not be applicable to the cause of action stated in the complaint. (Woods agt. Illinois Central R. R. Co., Ante, 285.) 8. Where a party duly subpoenas his witnesses to attend the trial of a cause, and pays them their legal fees, for travel and cne day's attendance, he is entitled, where he succeeds in the action, to have such fees taxed in the costs, although the witnesses, after going a part of the distance, were informed (as the fact was) that the court would not be held, and returned home. (Roth agt. Meads, Ante, 287.) 9. On an appeal to this court from an order of referees, made on reviewing an order of commissioners of highways, touching the laying out of the highway, no costs can be allowed to the prevailing party. DAVIS, J., dissenting. (This decision seems to overrule the one in People agt. Flake, 14 How., 527.) (People agt. Heath, Ante, 304.) 10. Where the wife commences an action of divorce against her husband, and pending the litigation the parties become reconciled and settle the action, and live together again as man and wife, the husband is not liable for the costs of her attorneys. (Phillips agt. Simmons, Ante, 342.) 11. Where a party attends the trial of a cause, and is sworn as a witness in his own behalf, he is entitled to witnesses' fees, for travel and attendance, on producing his own affidavit that he attended the trial only as a witness, and not in any respect as a party. (Bronner agt. Frauenthal, Ante, 355.) . 12. A county clerk has authority to tax costs in special proceedings under the Revised Statutes (on mandamus) although such costs are not provided for by the Code. (People agt. Colborne, Ante, 378.) 13. A public officer is entitled to double costs where he succeeds upon a proceeding by mandamus against him. And it seems that such costs may be awarded either as in an action, or a proceeding upon mandamus, under the Revised Statutes. The definition of an "action" considered. (Id.) |