At their

members of V. A. W. & Co. for
one-half of the amount.
request the note to whicn each was
entitled was made payable to his
wife. Each received his note and
delivered it to his wife as a gift,
and it was thereafter retained by
her. O. K. W. & Co. paid inter-
est on said notes each year up to
1884, by giving to the holders its
notes therefor; in May of that
year it became insolvent and made
an assignment for the benefit of
creditors, preferring the wives to
the amount of the original notes
and those given for interest. In
an action by a judgment creditor
of O. K. W. & Co., a portion of
whose claim accrued in 1879, to
set aside said assignment as fraud-
ulent because of said preferences,
held, that the action was not main-
tainable; that the payees named
in the notes became absolute own-
ers upon delivery to them, to the
same extent as if they had paid
value; and that such title and
consequent right of recovery
were in no way diminished or af
fected by the subseqent dealings
or complications of the two firms.

4. Where, therefore, an attachment
was obtained on the ground that
the members of a firm had made
an assignment with intent to de-
fraud their creditors, and the only
claim of fraud set forth in the
moving papers was that the co-
partners gave their joint and sev-
eral promissory notes for the in-
dividual debt of one of them, the
other signing as surety, and that
thereafter as a firm, and as indi-
viduals they executed the assign-
ment, in which they directed that
the notes should be paid out of the
proceeds of the firm property,

2. In an action to recover an over
payment alleged to have been
made to defendants upon a con-
tract for the purchase of railroad
ties, it appeared that plaintiff
agreed to take at certain prices
for different woods, all ties de-
fendants could get during the
season, "ties to be counted and
paid for before put in the river."
Defendants were not paid more
than they were entitled to for ties
actually delivered and accepted,
reckoning them at the prices fixed
by the contract. The referee found
that the word "counted," as used
in the contract, meant inspected.
Plaintiff claimed that, as on in-
spection part of the ties delivered
were classified by plaintiff's in-
spectors as seconds, and were in
fact seconds, he was not bound to
pay therefor the price for first-
class ties. Held, untenable; that
the finding that
the word
"counted" means inspected,"
might authorize the rejection of all
but first-class ties, but did not in
the absence of a provision in the
contract to that effect, justify the
conclusion that both firsts and
seconds might be accepted and
only the actual value of the
seconds paid for them. Larrowe
v. Lewis.
593

PENAL CODE.

123

PENALTIES.

1. By the amendment in 1889 (Chap.
236, Laws of 1889), of the act of
1874 (Chap. 430, Laws of 1874),
providing for "the reorganization
of railroads sold under a mort-
gage," a reorganized railroad cor-
poration no longer incurs the risk
of a forfeiture of its charter by a
failure to build an extension to its
road so as to complete it in ac-
cordance with the original plan,
after the board of railroad com-
missioners makes and files a cer-
tificate that, in their opinion, the
public interests do not require
such extension, and the effect of
the amendment is to abolish the
penalty which the original act
imposed, and as there is no clause
in the amendatory act saving pend-
ing prosecutions, all actions pend-
ing at the time of its going into
effect, in which judgment had not
been rendered, were left subject to
the rule created by the amendment,
and the certificate is a bar to the
action. People v. U. & D. R. R.
Co.
240

2. In an action to recover a penalty
for an alleged violation of the pro-
vision of the statute in relation to
fishing with nets in the fresh
waters of this state (§ 23, chap.
534, Laws of 1879, as amended by
chap. 127, Laws of 1884, which
prohibits the catching or killing
of any fish, with certain exceptions,
among which are suckers," in
any way except by angling with a
hook and line, in any of the fresh
waters of the state, except certain
places named, among which W.
creek was not included, it was
claimed that defendant had caught
suckers with a net in W. creek,
and had thereby rendered himself
liable to the penalty prescribed by
the statute; that the court should
strike out the word suckers from
the exceptions in the prohibitory
clause, as in no other way could
effect be given to certain other
clauses in the form of exceptions
contained in the statute, which
provide that, in waters specified,
it shall be lawful for certain per-
sons to possess and fish for suck-
ers with a seine or spear during
certain months. Held, untenable;
that the purpose of the clauses

referred to was simply to limit
and restrict, in the places named,
the license to catch suckers given
by the general exception. People
v. Tanner.
416

3. The complaint also demanded the
penalty imposed by said statute
(23) upon one having a net in his
possession on the shores of waters
inhabited by black or Oswego
bass. The only proof introduced
by plaintiff to show that the creek
was inhabited by said bass, was
that of a witness, who testified
that he had once caught them
therein, above the dam, which is
near a river inhabited by them,
and into which the creek empties.
Defendant proved by several wit-
nesses, who had fished in W. creek
for many years, that they had
never caught any of said bass in
the creek, or seen any that had
been caught there. The question
was submitted to the jury and they
found in favor of defendant. Held,
Id.

no error.

PLEADINGS.

1. Under a liquidation agreement
between a corporation and its
creditors, plaintiffs were appointed
trustees. In an action upon cer-
tain promissory notes given for
property purchased by defendant
of the trustees after they had
assumed the trust, the answer
alleged that defendant, as creditor,
was induced to become a party to
the liquidation agreement by false
representations, and asked to have
the same set aside and canceled as
to him. Held, that a demurrer to
the answer was properly sustained;
that the proper parties were not
represented in the litigation to en-
title defendant to judgment upon
the issue sought to be made by his
answer; and that it set up no de-
fense, as fraud inducing the execu-
tion of the contract was no answer
to defendant's obligation to pay
for property purchased of the trus-
Otis v. Shants.
45

2.

tees.

The answer also set up as counter-
claims, claims arising on certain
transactions between the corpora-
tion, its officers and agents, and
defendant prior to the liquidation
agreement. Held, that as the

alleged claims were not against
plaintiffs and had no connection
with the cause of action set forth
in the complaint, they were not
proper matters of counter-claim;
and that a demurrer was properly
sustained.
Id.

3. Defendant did not ask any affirma-
tive relief upon his counter-claims,
but as to each, asked to be per-
mitted to set off sufficient thereof
to satisfy plaintiffs' claims; the
demurrers thereto were upon the
ground "that they were insuffi-
cient in law upon the face thereof."
Held, that the demurrers were
sufficiently specific. (Code Civ.
Pro. § 494.)
Id.

4. The provisions of the Code of Civil
Procedure ( 495, 496), requiring
that where a demurrer to a counter-
claim is on the ground that the
cause of action sought to be coun-
ter-claimed did not arise out of the
contract or transaction set forth in
the complaint, or was not con-
nected with the subject of the
action, or that the counter-claim
does not set forth a cause of action,
these objections must be distinctly
specified in the demurrer, only
apply where defendant demands
affirmative relief.
Id.

5. In an action for the foreclosure of
a mortgage it appeared that
$55,000, the amount to secure
which the mortgage was given,
was by its terms to be advanced
to the mortgagors in seventeen
specific installments, dependent
upon different stages of the work
of constructing a building upon
the mortgaged premises, which
was to be the chief security for
the loan. When the advances
amounted to about $40,000 a lien
for materials furnished and services
performed was filed. The mort-
gagees thereupon declined to make
any further advances, and a con-
tract was then entered into by
which the lienor agreed to subor-
dinate its lien to the further ad-
vances called for by the mortgage,
and the mortgagees agreed to pay
said lien in specified proportions
out of the fifteenth and sixteenth
installments when they should be
earned and become due, and they
accepted an order upon them pay-

SICKELS-VOL. LXXXIII.

6,

7.

able out of said installments when
due. The mortgagors never earned
or became entitled to these install-
ments, but the mortgagees ad-
vanced to them the amount se-
cured by the mortgage, and
$10,000 more, less the amount of
the lienor's claim, to be used in the
prosecution of the work, under an
agreement with said lienor that
the claim should be paid out of
said $10,000. The lienor was
made defendant, but no personal
judgment asked against it; it set
up its claim as a counter-claim
and asked for a money judgment.
The counter-claim was dismissed.
A judgment of foreclosure and
sale was ordered for the amount
of the mortgage and interest, and
the surplus ordered to be brought
into court. Held, no error; that
the judgment was in accordance
with and awarded only the relief
agreed upon by the parties; that
whatever claim said lienor might
have it was not a permissible coun-
ter-claim. (Code Civ. Pro. § 501.)
Lipman v. J. A. Iron Works,

58

Also held, that plaintiff's objec-
tion to the counter-claim was not
waived by the omission to demur
or specifically object thereto by
answer; that the provisions of the
Code of Civil Procedure providing
for such a waiver ( 498, 499), re-
late only to defects in the com-
plaint and a waiver by the defend-
ant.
Id.

In an action to recover damages
for injuries received by plaintiff
while using a toboggan upon a
slide on premises in the posession
and management of defendants,
the complaint alleged that defend-
ants were a joint stock company
doing business in New York city
under a name given, and that the
injuries arose from the negligence
of their employes. The answer
denied these allegations. Upon
the trial, plaintiff gave no evidence
as to defendants being a joint stock
company, but endeavored to prove
a joint or partnership liability
based upon allegations that the
premises were leased to them for
the purpose of putting up the
toboggan slides. Defendants
claimed that they were simply in-
dividual members of and stock-

95

of the wagon, after it had passed
the driver of the street car and
when it was abreast of the car,
suddenly turned off the track; the
lumber which projected beyond
the wagon was, by the movement,
thrust through a window of the
car, and struck the plaintiff, in-
flicting the injury complained of.
The car driver, happening to look
up in his mirror, saw the wagon
driver in the act of turning out,
and he at once set the brake and
stopped the car. It was claimed
that the car was traveling at an
unusual rate of speed. Held, that
the evidence failed to show any
negligence on the part of defend.
ant, and the submission of the
question to the jury was error;
that, assuming the rate of speed
of the car was unusual, it had
nothing to do with the accident.
Alexander v. R. C. & B. R. R. Co.

13

2. Upon an appeal from an order of
Special Term confirming an award
of commissioners appointed to ap-
praise lands taken by a railroad
company, the General Term re-
versed the order of Special Term
and ordered a new appraisal before
the same commissioners. Held,
that the order, being one in a
special proceeding and not final,
was not appealable to this court.
(Code Civ. Pro. § 190, subd. 3.)
In re S. B. R. R. Co.
93

was part of a highway known as
the southern boulevard," laid
out under the act of 1867 (Chap.
290, Laws of 1867), which provides
(§ 24) that no rails shall be laid in
said boulevard except for the pur-
pose of crossing it, and that if
the legislature thereafter authorize
the building of a railroad along it,
nothing in said act shall be con-
strued to affect or cut off the
rights of the owners of the lands
taken for the boulevard from
claiming and receiving the full
value of the lands taken for the
road, to the same extent as if no
boulevard had been laid out. The
petitioner claimed that the pro-
vision as to damages was repealed
by the amendment of said act in
1887 (Chap. 723, Laws of 1887).
A merely nominal award was ren