SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. resigned, the assignment would still be valid, because it is not such a transfer as is intended to be prohibited by the statute. This is evident from the whole context of the statute. The vice aimed at is evidently a transfer for the benefit of the director or stockholder. The trust here contemplated is one guarded by statutory regulations, which can as well, if not better, be executed by one with knowledge of the affairs of the corporation such as a director would have. The transfer prohibited, evidently, is one for the payment of a debt operating in the nature of a preference. The subsequent clauses of the section compelling the transferee to account therefor to the creditors or stockholders or other trustees of the corporation points the transfer intended to be prohibited as one beneficial to the transferees, and indicates the purposes of the enactment. Second, was the assignment of the property properly executed? Section 2, chapter 466, of the Laws of 1877, provides for a general assignment, and requires, among other things, that it shall be in writing, and duly acknowledged before an officer authorized to take acknowledgments of deeds. The certificate of acknowledgment of the officer does not show a proper acknowledgment on behalf of the assignor. The plaintiff claims that, by reason of such defect, the assignment is rendered void. It is unnecessary to cite authorities to the proposition that these assignments, without preferences, are favored in law. That the certificate is materially defective I have little doubt. If a proper certificate by the notary of the acknowledgment be a prerequisite to the passing of title under the assignment, the plaintiff's contention must prevail and the assignment be declared void. But the statute requires only that the assignment shall be acknowledged by the assignor. In the American and English Encyclopædia of Law (Vol. 1, p. 4) an acknowledgment is defined to be "the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed." That the assignor did all that was by him required is shown both by the subsequent certificate of the notary and by the evidence upon the trial. The notary has improperly certified an act which was properly done. Is his certificate any part of the acknowledgment required by the statute? The act of 1877, under which this assignment was made, is a substitute for chapter 348 of the Laws of 1860, section 1. And that section reads as follows: "Every conveyance or assignment made by a debtor or

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

debtors * * * for the creditors of such debtor or debtors shall be in writing and shall be duly acknowledged before an officer authorized to take acknowledgment of deeds, and the certificate of such acknowledgment shall be duly indorsed upon such conveyance or assignment before the delivery thereof to the assignee or assignees therein named." It is a significant fact that in the statute of 1877 the part of the statute of 1860, which is italicized above, is omitted. The natural, and, I would almost say, the irresistible inference to be drawn from that fact is that the Legislature intended to make the acknowledgment the necessary prerequisite, and not the certification. of that acknowledgment. This seems to be the view of the statute taken by a very distinguished justice in the case of Rogers v. Pell (89 Hun, 161). In that case Justice BROWN, in speaking of this statute, says: "The statute of this State does not require the certificate of acknowledgment to appear upon the assignment; all that is required is that it be acknowledged." If, then, this assignment has been properly acknowledged, this action must of necessity fail. If the indorsement of the certificate by the notary be not a necessary part of the assignment, and if it be not a necessary prerequisite to the vesting of title in the assignee, a proper certificate may be made at any time before the trial, and, without a corrected certificate. even, proof may be made upon the trial that the proper acknowledgment was made. Because the certificate of acknowledgment upon the assignment was incorrect, and, if true, invalidated the assignment, the plaintiff has good reason for commencing this action. The complaint must, therefore, be dismissed, without costs to either party.

The following opinion was written upon a reargument of the case at Special Term:

SMITH, J.:

For the purposes of this trial at Special Term, I deem the law of the case to have been established by the opinion of Justice BEEKMAN, written upon the decision of the demurrer. Within that decision the action can be maintained only as an action of sequestration. The assets of the corporation are now being distributed by the agent of the corporation with security, under legal supervision, in exactly the same manner as if distributed under direction of the court

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. through its receiver. No reason appears in the evidence why the plaintiff will not be fully protected in such distribution, or that he has any need of the equitable interposition of this court. This case was first decided upon the ground that while an acknowledgment was necessary to pass title, the presence of a certificate of acknowledg ment was not a prerequisite. This was based in part upon the authority of Rogers v. Pell in the second department. Since the decision was announced, however, that case has been reversed by the Court of Appeals. This motion for a reargument is made upon the declaration of the law contained in that decision. All that is there decided is that a certificate of acknowledgment defective in form, in that from the recited venue of the instrument it appeared to have been executed without the jurisdiction of the officer who executed it, may be sustained by proof of the fact that the instrument was executed within the proper jurisdiction. The opinion assumes that the venue is an essential part of the certificate. Inasmuch as the proof shows that the acknowledgment in the case at bar was properly made, though improperly certified, the decision would seem to be an authority for the conclusion first reached herein, holding valid the assignment. If the opinion contains propositions of law inconsistent with the decision actually made, it must in such respect be disregarded. Without attempting to reconcile the apparent conflict, I am unable to see such a substantial difference in the correction of the certificate of acknowledgment there allowed to be made, and the correction here asked to have allowed, as to take this case out of the authority of that decision. This conclusion, too, is in harmony with the general policy of the law, not to charge a party with the mistake of a public officer, especially where the rights of bona fide holders are not involved. Defendant may, therefore, present a decision in accordance with the conclusion heretofore indicated.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

CHARLES DEUTERMANN and Others, as Executors, etc., Appellants, v. ALEXANDER POLLOCK and SAMUEL H. GAINSBORG, Respondents. Where a motion to resettle a case is made on a private stenographer's minutes the order must recite, although the court rejects, them.

Where a motion to resettle a case upon appeal is made upon an order to show cause, reciting that it is made upon the affidavit of one Frank F. Wood, a private stenographer, “and those portions of the stenographer's minutes taken upon the trial by said Wood," applicable to certain amendments, the moving party is entitled to have the order disposing of such motion recite such minutes as a part of the motion papers, although the court which decided the motion held that the minutes of the official stenographer were the only standard aside from the recollection of the trial judge.

APPEAL by the plaintiffs, Charles Deutermann and others, as executors, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 14th day of October, 1898, denying their motion to resettle an order resettling the case upon appeal. Eugene Frayer, for the appellants.

Wilson Brown, Jr., for the respondents.

PER CURIAM:

An order was made in this cause on the 23d day of July, 1898, resettling the case on appeal. The plaintiffs had moved for a resettlement of the case upon an order to show cause, which recited that it was made upon an affidavit of one Frank F. Wood "and those portions of the stenographer's minutes taken upon the trial by said Wood" applicable to certain amendments thereinafter specified. In resettling the case on appeal the learned judge refused to follow the notes of this private stenographer, holding that the notes of the official stenographer are the only standard, aside from the memory of the trial judge. This clearly appears from his opinion. In his order resettling the case, however, no reference was made to the fact that Mr. Wood's minutes were before him, and the plaintiffs' grievance on the present appeal is that the judge declined to amend said order so as to recite those minutes as part of the motion papers.

We think that they should have been recited. The opinion of Mr. Justice DYKMAN shows beyond any doubt that they were brought to his attention, for he expressly refers to "the request of the

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. counsel for the plaintiff to substitute the notes of his private stenographers for those of the official stenographer," and says that such request cannot prevail for obvious reasons. As already stated, these minutes were mentioned in the order to show cause as among the papers upon which the plaintiffs based their motion. Upon the hearing counsel for defendants appears to have objected to the consideration of certain exhibits by the court, on the ground that such exhibits had not been served upon him. It is not distinctly shown, however, that this objection extended to the minutes taken by Mr. Wood. The position of defendants' counsel seems rather to have been that it made no difference what those minutes contained as the court must be guided by the official minutes alone; and in this position he was sustained by Mr. Justice DYKMAN.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the plaintiffs' motion to resettle the order of July 23, 1898, granted by inserting in said order a proper recital of Mr. Wood's minutes as among the plaintiffs' papers.

All concurred.

Order reversed, with ten dollars costs and disbursements, and plaintiffs' motion to resettle order of July 23, 1898, granted by inserting in said order a recital of Mr. Wood's minutes as among the papers.

Motion to dismiss appeal from order of July 23, 1898, denied, without costs.

Motion to dismiss appeal from order of November 10, 1898, granted, without costs.

THE CONEY ISLAND AND GRAVESEND RAILWAY COMPANY, Appellant, V. THE CONEY ISLAND AND BROOKLYN RAILROAD COMPANY and THE BROOKLYN CITY AND NEWTOWN RAILROAD COMPANY, Respondents. Agreement between two railroad companies to construct a road for joint use—either company may run cars of a leased road over it.

The Coney Island and Brooklyn Railroad Company, which had a right to construct and operate its railroad upon a certain portion of Neptune avenue, in the town of Gravesend, which right was quite independent of, and not subordinate to, any right possessed by the Coney Island and Gravesend Railway Company in said street, entered into an agreement with the latter company to con