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SECOND DEPARTMENT, FEBRUARY TERM, 1899.

App. Div.]

the State of New York is a voluntary, unincorporated association, which was formed prior to the year 1879, of and among the officers of the said Eleventh Regiment, and which has been continued to this date. It consists of more than seven members, and the plaintiff is the president and presiding member thereof. In or about the year 1879 a fund was raised by said board of officers and their friends for the purpose of being used for the relief of sick and destitute members of said regiment who had not neglected their duties for the six months prior to their sickness, or, in case of their death, of their families. The said fund was known as the "relief fund" of said regiment. One Frederick D. Umbekant, who was the colonel of the regiment and the president and presiding officer of said board of officers, in or about the year 1879, was elected by said board of officers the trustee of said fund, to hold the same and pay out the same pursuant to the directions of said board of officers, and from that time the said fund was administered under the direction of said board of officers for the said charitable purposes for which it was created, and payments were made by said trustee and by his successor on the votes and orders of said board of officers. Frederick D. Umbekant died and Albert P. Stewart, who succeeded him as colonel of the regiment, in or about the year 1885, was elected to succeed him as trustee of said trust, and payments therefrom were made by him on the votes and orders of said board of officers. In January, 1889, said Eleventh Regiment of the National Guard of the State of New York was disbanded by the Commander-in-chief. At that time there were between 400 and 500 privates and non-commissioned officers, and over 20 commissioned officers, connected with said regiment. Albert P. Stewart died on May 11, 1893, being then in possession of said fund, the whole or part of which was deposited in the United States Trust Company, in the city of New York, to the credit of Albert P. Stewart, trustee. On June 10, 1893, said board of officers of the said Eleventh Regi ment elected the defendant, Charles H. Collins, who was then a member of said board of officers, a trustee of said fund to succeed said Albert P. Stewart. Thereafter said Charles H. Collins applied to this court upon a verified petition, and upon notice to Emily Stewart, the administratrix of the estate of said Stewart, for an order that said fund be paid over to him as such trustee. In his said petition he stated the fact of his appointment as such trustee by said board of officers, together with other facts. Upon this petition an order was made by this court, at a Special Term thereof, held at Chambers, at the court house in the city of New York, on the 28th day of June, 1893, by which it was "ordered that said Emily Stewart forthwith surrender unto said Charles H. Collins, said petitioner and trustee, the United States Trust Company's certificate No. A68,718 for three thousand two hundred and thirty-four 20/100 dollars ($3,234.20); and it is further ordered that upon the surrender of said certificates unto said trust company by said Charles H. Collins, the United States Trust Company of New York city, after deducting from the amount of said certificate the sum of four hundred and sixty ($160.00) dollars, paid to Albert P. Stewart, as mentioned in petition herein, pay over forthwith to said Charles H. Collins the sum of two thousand seven hundred and seventyfour 25/100 ($2,774.25) dollars, and the interest due thereon, to be held by said Charles H. Collins as trustee of said Eleventh Regi

ment Relief Fund." On the footing of said order and in pursuance of the same, said defendant, Charles H. Collins, obtained and received from said United States Trust Company the sum of two thousand eight hundred and nineteen ($2,819) dollars, as follows, to wit: On July 20, 1893, the sum of two thousand ($2,000) dollars, and on September 19, 1893, the further sum of eight hundred and nineteen ($819) dollars. Said payments were made to the said Charles H. Collins by the checks of said United States Trust Company on the Bank of the Manhattan Company, and were payable to his order as trustee, and they were indorsed by him as trustee and also as an individual, and were thereupon deposited by him in his own bank and to his own personal credit. The fact that he had collected and received these sums of money was not made known by the said Charles H. Collins to the said board of officers until more than one year after the last of said payments to wit, on December 22, 1894, on which date a meeting of said board of officers was held, at which he was present, and at which certain of the members of the association stated that they had heard that the money had been collected, and inquired of him in relation thereto. At this time the defendant made various false statements as constituting reasons why the fund in his hands must remain with him; and he further stated that the entire fund had been invested by him on a mortgage upon real estate in the county of Westchester, payable in sixty days and secured by the bond of responsible parties. At this meeting, after the defendant had made his statement with regard to the fund and its investment, the said board of officers elected Gustav Junker and Harold B. Christensen as trustees to act with said defendant with relation to said trust, and authorized them to procure a full accounting from the defendant with relation to the said trust. Shortly thereafter, and in the early part of January, 1895, Messrs. Junker and Christensen, the trustees appointed by said board of officers, called upon the defendant and requested to be shown the securities in which the fund had been invested by him. He then stated that these securities were not then at his office, and appointed another day when they could call and when they would be shown the securities of which he had spoken. Pursuant to this appointment, and on January 22, 1895, Messrs. Junker and Christensen again called at the office of the defendant, when they were shown by him a paper which he said was a mortgage repre senting the investment of the entire fund received by him. This mortgage was taken into the possession of Messrs. Junker and Christensen by them contrary to the active protest and resistance of the defendant, and was produced in evidence before me. This mortgage purports to have been made by Samuel C. Searson, of the town of New Rochelle, county of Westchester and State of New York, and Agnes W., his wife, to Charles H. Collins, as trustee of the Eleventh Regiment Relief Fund, to secure the sum of two thousand eight hundred ($2,800) dollars on November 1, 1894, with interest from September 11, 1894. It purports to mortgage a block of land in the town of Williamsbridge, county of Westchester and State of New York, bounded by Bridge street, Pier street, Hawthorne avenue and Fern place. It bears date September 11, 1894, and purports to have been acknowledged on that day before Robert J. Roby, Jr., a notary public, and to have been recorded in the office of the register of the county of West. chester, in the "City of White Plains," in

79

APP. DIV.-VOL. XXXVIII.

SECOND DEPARTMENT, FEBRUARY TERM, 1899.

[Vol. 38.

with respect to the amount which shoull be paid for the compensation and disbursements of the attorney and counsel for the prosecution of this action, and for any proceeding against the defendant herein with relation to said fund and obtaining security therefor. That on the coming in and confirmation of the report of said referee on said accounting the said defendant pay to the Knickerbocker Trust Company of the city of New York, the trustee hereby appointed of said Eleventh Regiment Relief Fund in the place and stead of Charles H. Collins, the amount so reported due, and that he pay to the plaintiff in this action the costs and disbursements thereof, together with such additional allowance as may hereafter be granted. That the said Knickerbocker Trust Company, as trustee, pay out and dispose of said fund on the orders of the board of officers of the Eleventh Regiment of the National Guard of the State of New York, for the charitable purposes for which said fund was created, as above set forth, to wit, for the relief of sick and destitute members of said regiment who had not neglected their duties for the six months prior to the disbandment of such regiment, or, in case of their death, to their families, and that said trustee pay from said fund the reasonable compensation and disbursements, as determined by the final judgment herein, of attorney and counsel for prosecution of this action, and for any proceeding against the defendant herein with relation to said fund, and obtaining security therefor, and that the order of said board of officers subscribed by the secretary and treasurer of said board of officers, and by any other two persons who may be nominated and appointed by said board of officers to certify to such orders, shall be a full justification of, and protection for, said trust company for making such payments, and said trust company, as trustee as aforesaid, shall not be required to inquire as to the propriety of said orders. And I hereby direct judgment to be entered accordingly.

liber 1121 of Mortgages, page 505. It was
fully proved and conceded before me that
the said mortgage was a fabrication; that
the mortgagors were fictitious persons; that
it had been executed in their imagined
names, either by the defendant in person, or
by some other person, pursuant to his au-
thority and direction; that no person had
ever acknowledged the instrument; that the
property secured was imaginary and fic-
titious; that it had never been recorded in
any office, and that the signature purport-
ing to be that of the register to the certifi-
cate of record had also been placed upon the
paper by the defendant, or pursuant to his
direction. The paper did, however, conform
to the description of the mortgage which
the defendant had represented to his asso-
ciates in the board of officers as being the
security in which he had invested the funds
received by him as trustee of the relief fund
of the regiment, in this, that it stated the
amount of the fund correctly to within
nineteen ($19) dollars; that it did purport to
be upon Westchester county property, and
that it did purport to be payable within
sixty days from its date. A sum of money,
amounting to about twelve hundred and
fifty ($1,250) dollars, was invested by the de-
fendant on a mortgage assigned to himself
personally, upon property in the State of New
Jersey, but this investment was not made
pursuant to any authority given to him by
the board of officers, was not made as trus-
tee of this fund, or as trustee for any other
purpose, and was without legal authority.
Since the discovery by the board of officers
of the Eleventh Regiment Relief Fund of the
fact that the defendant had received this
fund into his possession, he has repudiated
the authority of the board of officers over it,
and has resisted every effort on their part to
have any control over said fund, and has vio-
lated his duty as trustee with relation
thereto. I, therefore, decide that the plain-
tiff is entitled to a judgment that the said
defendant, Charles H. Collins, be removed
as trustee of the Eleventh Regiment Relief
Fund, and that he account for all of the mon-
eys belonging to said fund heretofore re-
ceived by him before Edward L. Patterson,
Esq., of the city of New York, counselor at
law, appointed a referee to take such ac-
counting; that on such accounting he be
charged with the sum of two thousand
eight hundred and nineteen ($2,819) dollars,
with interest on two thousand ($2,000) dol-
lars thereof, from July 20. 1893, and on eight
hundred and nineteen ($819) dollars thereof,
from September 19, 1893; that he be credited
with the reasonable costs and charges of
making the motion in this court, upon which
the order was obtained directing the pay-
ment of said money by the United States
Trust Company, and with any payments
made by him by the authority of the board
of officers of the Eleventh Regiment for the
charitable purposes for which said trust was
created, or which may be ratified or ap-
proved by them or by the attorney for the
plaintiff in this action, but that no allowance
should be made to him on such accounting
for commissions as trustee or for counsel
fees or disbursements incurred in resisting
the claims of the plaintiff in this action.
That said referee also take proof and report |
with respect to any other disbursements
made by said Collins in the administration of
his trust, and that he take proof and report
upon Collins' claim for compensation out of
the fund for services rendered by him before
he was appointed trustee in the action of Wal-
ton v. Stewart, for the recovery of the fund.
That said referee also take proof and report,

|

In the Matter of the Application of Samuel
Evans Maires for Admission to Practice as
Attorney and Counselor at Law in all the
Courts of the State of New York.- Appli-
cation granted.

George A. Miller, Respondent, v. Erie Railroad
Company, Appellant. - Motion for leave to
appeal to the Court of Appeals denied. Pro-
ceedings on the part of the respondent stayed
twenty days from the date of this decision.
John Bartnik, an Infant, by Francis Gottsber-
ger, his Guardian ad Litem, Respondent. v.
Erie Railroad Company, Appellant.- Motion
for leave to appeal to the Court of Appeals
denied. Proceedings on the part of the re-
spondent stayed twenty days from the date
of this decision.
William N. Dykman, as Receiver, etc., Appel-
lant, v. Seth L. Keeney and Others. Respond-
ents. Motion for reargument denied.
The Staten Island Midland Railroad Company,
Respondent. v. Staten Island Electric Rail-
road Company, Appellant.- Motion for re-
argument denied.
Joanna Hickman, Respondent, v. Nassau Elec-
tric Railroad Company, Appellant.- Motion
for reargument denied.

Stephen Ryder, Plaintiff, v. The Brooklyn Ele-
vated Railroad Company, Defendant.-No-
tice must be given of this application.
Ann Brown, Respondent, v. The Manhattan
Railway Company, Appellant.-Judgment
affirmed, with costs. No opinion. All con-
curred.

Ernst F. Bliss, Respondent, v. The Metropolitan Elevated Railway Company and An

FIRST DEPARTMENT, MARCH TERM, 1899.

App. Div.]

other, Appellants.-Judgment affirmed, with | costs. No opinion. All concurred. Donald Sutherland, Respondent, v. Union Railway Company of New York City, Appellant. -Judgment and order unanimously af firmed, with costs. No opinion. John P. Schmenger, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.

Judgment affirmed, with costs. No opinion. All concurred. William N. Henke and Amelia Henke, Respondents, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants. Judgment affirmed, with costs. No opinion. All concurred. Sarah E. House, Respondent, v. Erie Railroad Company, Appellant.-- Judgment and order unanimously affirmed, with costs. No opinion.

Catherine F. Wetmore, as Executrix, etc., of Richard Carman Combes, Deceased. Appellant and Respondent, v. Indiana V. Stromeyer, Respondent and Appellant, Impleaded with Others.- Judgment affirmed, with costs. Appeal from a judgment entered on the report of a referee.VAN BRUNT, P. J.: This action was brought by the plaintiff's testator to have his accounts in respect to the enterprise hereinafter mentioned passed, and for such other equitable relief as might be proper. The case was tried before a referee, who rendered a judgment, from which both parties appealed, but the only question presented to this court upon the argument was on the appeal of the defendant Indiana V. Stromeyer, she claiming that certain acts performed by the plaintiff's testator Combes, as trustee, were unauthorized, improper and in violation of his duty as such trustee. It appeared before the referee that the Stromeyer interest belonged to the defendant Indiana V. Stromeyer, who was represented by her husband, Frederick A. Stromeyer, in all these transactions, who had full authority to act for and on her behalf, it not being developed until near the close of these transactions to the other parties in interest that Frederick A. Stromeyer was not the one who really owned the interest which he represented. The facts as established before the referee seem to be briefly as follows: A railroad corporation, known as "The Pennsylvania and Western Railroad Company, incorporated under the laws of the State of Pennsylvania, existed prior and up to March, 1877. In March, 1877, a new corporation, bearing the same name, was organized and incorporated as a successor thereto. On and after September 1,1879, the plaintiff's testator, Combes, and three others, among whom was this appellant, each owned a one-quarter interest in said Pennsylvania and Western Railroad Company. This appellant is, in some places in the case, confused with her husband. Frederick A. Stromeyer, who, however, acted at all times as her agent, and had full power and authority to bind her by any of his acts. On or about June 3, 1880, this appellant, as well as all the owners of the stock of said railroad company, other than Combes, delivered her stock therein to Combes as trustee. Thereafter Combes uniformly acted as trustee for all the cther owners with their consent. On May 2. 1882, this appellant and the other cestuis que trustent instructed

The People of the State of New York, Respondent, v. Christian Muller, Appellant.- Appeal dismissed on argument.

FIRST DEPARTMENT, MARCH TERM, 1899.

Henri Strasbourger, Plaintiff, v. Herman Falkenberg, Defendant. - Judgment for plaintiff on agreed statement of facts, on the ground that the defendant's title is so doubtful, by reason of the existence of the auctioneer's bond, that the court would not be justified in compelling plaintiff to accept it. All concurred.

John Schreyer, Respondent, v. Thorndike Saunders, Appellant, Impleaded with Others.-- Judgment affirmed, with costs. No opinion. All concurred.

The People of the State of New York ex rel. John J. Joyce, Appellant, v. Gerard B. Van Wart, Respondent.- Motion to resettle order granted.

Combes in writing to sell out their interest in the said railroad company, as well as in a concern called "The Franklin Improvement Company," a construction company identified with the railroad company. On or about May 8, 1882, said Combes personally (as to his own interest), and as trustee for the said cestuis que trustent, by an agreement, in writing, sold the said railroad company to one S. R. Peale. This agreement was satisfactory to, and approved by, all the cestuis que trustent. In and by said agreement, said Peale agreed to pay $8,500 to Combes as soon as Peale's counsel should have found that said Combes was in a position to perform his part of the agreement, to pay, within four years, the further sum of $15,000, and on the completion of the construction of ten miles of railroad, to deliver to said Combes $150,000 worth of first mortgage bonds of said railroad company, or, at the option of said Peale, in lieu of such bonds, seventy-five per cent of $150,000 in cash. On or before June 11, 1882, said Peale paid to said Combes the said sum of $8.500. On August 7, 1882, an additional agreement (hereinafter called the supplemental agreement) was made between said Combes and said Peale, varying and rendering virtually nugatory the aforementioned agreement of May 8, 1882. Said supplemental agreement recites that. whereas Peale's counsel has doubts about the authority of the Pennsylvania and Western Railroad Company to locate and construct its railroad through Clinton, Centre and Clearfield counties, Pa., and it being desired to judicially determine that question," and then provides that Peale should be allowed to use another railroad company, established under another charter referred to as belonging to Peale and those jointly interested with him, to contest the right of the Pennsylvania and Western Railroad Company to build over a certain portion of its claimed roadway, and that if the question so raised should be determined against the said Pennsylvania and Western Railroad Company, then the 88.500 already paid was to constitute the whole compensation of Combes and his cestuis que trustent for the property conveyed by the agreement of May 8, 1882. The defendant appellant or her agent, Frederick A. Stromeyer, had knowledge of the execution of this agreement the day following. After the execution of said supplemental agreement, said Peale and others organized "The Beach

38g 627 a165a637

FIRST DEPARTMENT, MARCH TERM, 1899.

Creek, Clearfield and Southwestern Railroad Company," which thereupon began to build a railroad upon part of the location of the Pennsylvania and Western Railroad Company. The Pennsylvania and Western Railroad Company began to build its road, but was enjoined therefrom in an action brought against it by the said Beach Creek, etc., Company, since which time no work whatever has been done on the construction of the Pennsylvania and Western Railroad Company. In 1883 an action of quo warranto was brought against the Pennsylvania and Western Railroad Company, at the instigation of Peale, which resulted in a judgment of ouster being given against said railroad company from a place called " Beach Creek Gap," a portion of its claimed roadway. An appeal was taken by the said Pennsylvania and Western Railroad Company from said judgment of ouster, which continued pending until the claims of Combes and his cestuis que trustent against Peele were settled long afterwards. On or about July 13, 1885, Combes and all the cestuis que trustent joined in an agreement with Simon Sterne, Esq., of the New York bar, whereby the latter undertook to prosecute their claims against Peale and others, by which agreement Combes and his associates agreed to pay out of the proceeds of whatever might be recovered, either at the end of the litigation or as the result of a settlement, first, the costs and expenses of any litigation which might be conducted, and out of the remainder to pay to Mr. Sterne twenty-five per cent thereof for his services in the conduct of the litigation, and seventy-five per cent to be the property of the associates, all charges for counsel fees for the conduct of proceedings in Pennsylvania to be at the expense of Mr. Sterne, who was to have the sole determination as to the proceedings there to be instituted and whom to employ. In pursuance of the authority conferred by this agreement, Mr. Sterne commenced two actions in the Supreme Court of the State of New York, neither of which were brought to trial. The complaint in the last action was verified by Frederick Stromeyer on the 28th of May, 1886, as one of the plaintiffs and parties in interest. No mention was made therein of the defendant Indiana V. Stromeyer, or of any interest claimed by her in the company or its property. In the complaint thus sworn to by Frederick Stromeyer is the following allegation: "That said Combes and Berthoud, being fully persuaded that the said action was for the advantage of the Pennsylvania & Western Railroad Company, and was honestly undertaken in its interest, sanctioned, aided and seconded all the acts and proceedings of said Peale, and surrendered the surveys and rights of way of the Pennsylvania & Western Railroad Company to the said Peale, and under the advice of one William A. Wallace, the attorney of said Peale, and who was the confidential adviser of and largely interested with the said Peale, and who was believed by said Combes and Berthoud to be acting for the common benefit of the parties to the said contract of May 8th, 1882, the said Combes and Berthoud, on their part, on or about August 7th, 1882, signed a supplementary agreement." Thereafter, Mr. Sterne, with the approval of all concerned, realized certain sums in settlement of the claims placed in his hands, and, after deducting his fees, paid over to Mr. Combes the balance, which was the principal asset accounted for by Combes herein. The Stromeyers having assigned a certain proportion of their claim in this action to one Richard Meyer, the referee found that the Stromeyer

[Vol. 38.

interest should be paid to Meyer, and that
nothing remained due to either of the Stro-
meyers. The appellant Stromeyer claims
that the agreement of August 7, 1882, was
executed without their knowledge, and that
their subsequent ratification of the agree-
ment is not binding upon thein because such
ratification was made under duress of pov-
erty. We are unable to see upon what
theory the appellant Stromeyer can avoid
the effect of the subsequent ratification of
the agreement of August 7, 1882. There is no
pretense but that such ratification was made
with full knowledge of all the facts, and that
they joined in all the attempts to secure as
much as possible out of the enterprise in
which they were interested. They joined in
the agreement with Sterne. Frederick Stro-
meyer swore to a complaint in which he avers
the honesty of Combes in entering into the
supplemental agreement, and when a com-
promise was made they distinctly approved
and they participated in the benefits arising
therefrom. The fact that, in consequence of
their pecuniary condition the nimble six-
pence was of much more importance to
them than the slow shilling, in no way con-
stituted duress; nor would it relieve them
from their repeated ratification of an act
which was sworn by them to be honestly
done and in the interest of the cestuis que
trustent. It would be introducing a new and
dangerous element into the principles of
equity to hold that the pecuniary condition
of parties to an agreement could avoid its
binding effect. While there may possibly be
cases where the fraudulent use of such con-
dition by a party in order to secure an un-
conscionable advantage may be availed of to
obtain relief from agreements so entered
into, the case at bar is entirely barren of any
proof that the plaintiff's testator used any
unfair means in order to bring about the
ratification which they freely made. We are
of opinion, therefore, that the referee was
correct in the judgment rendered so far as
presented on this appeal, and it should be
affirmed, with costs to the plaintiff. Bar-
rett, Rumsey, O'Brien and Ingraham, JJ.,

concurred.

John W. Queen and Thomas F. Donnelly, as
Receivers of the Weaver Cycle Material Com-
pany. Appellants, v. Joseph A. Weaver, Re-
spondent.- Judgment reversed, new trial-
ordered, costs to appellants to abide event.-
Appeal from a judgment entered after a trial
at Special Term.-
VAN BRUNT, P. J.: The plaintiffs in this ac-
tion, as receivers of the Weaver Cycle Ma-
terial Company, brought this action to set
aside a bill of sale made by said company to
the defendant, and also an assignment of
certain book accounts, the consideration of
the bill of sale being money which had
theretofore been loaned by the defendant
to the company, and the consideration for
the assignment being the contingent lia-
bility of the defendant as indorser of the
notes of the company. The ground upon
which the plaintiff's proceeded was that
these transfers were made by the com-
pany either when it was insolvent or in con-
templation of insolvency. Upon the argu-
ment of this appeal considerable stress was
laid upon the question as to whether the laws
of New York in respect to the transfer of
property by corporations, or the laws of New
Jersey, applied to the transfers above men-
tioned. It seems to us that it is immaterial,
in view of the facts developed upon the trial
of this action, whether we apply the laws of
the State of New York or the laws of the
State of New Jersey to these transfers. They
were clearly made in contemplation of insol-

[blocks in formation]

FIRST DEPARTMENT, MARCH TERM, 1899.

App. Div.]

vency, and consequently are void as against | creditors under the laws of either State. It appears from the evidence that the defendant was a stockholder and director of the corporation; that certain notes, upon which was been a and that the defendant was advised to secure himself. He thereupon took a bill of sale of the personal property and the assignment of the book accounts above mentioned. Upon this bill of sale he took possession, substantially, of all the merchandise with which the corporation was doing business in the State of New York, and he understood that it could not go on in business after the transfer. In fact the company abandoned the property contained in its place of business, never went there again, and did no business whatever after these transfers. The learned court below held that because evidence was introduced tending to show that the corporation had property enough, at its cost price, to pay its debts, it was, therefore, solvent and the transfers were not made when the corporation was insolvent and so within the inhibition of the statute. But it did not find that the transfers were not made in contemplation of insolvency, which is as distinctly prohibited as a transfer when insolvent. It is clear from the evidence in this case that the transfers in question were made in contemplation of insolvency. The defendant resigned as director in order to get rid of that trust relation; he remained as a stockholder; he then took a large part of the personal property of the corporation in payment of advances he had theretofore made as he himself says, knowing it would close up their business. He also took an assignment of a large proportion of its book accounts as security for his indorsements. It is apparent that he was not a bona fide purchaser for value, and it is equally certain that it was because of the approaching critical condition of the company that he sought to secure himself. He must have known when these transfers took place that the business of the company would neces sarily be suspended and that it would be unable to meet its current obligations. The transfers were manifestly made in contemplation of insolvency, and even by the statutes of New Jersey were void as against creditors. The judgment appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event. Barrett, Rumsey, O'Brien and Ingraham, JJ., concurred. The People of the State of New York ex rel. Denis J. Mahoney, Respondent, v. Charles F. MacLean and Others, as Police Commissioners of the City of New York, Constituting the Board of Police of the Police Department of the City of New York, Appellants.Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Appeal from an order granting relator's motion to compel the defendants to withdraw a notice of exception to the sufficiency of sureties on an undertaking.VAN BRUNT, P. J. There is only one question which it seems to be necessary to consider in determining this appeal. There does not appear to have been any right upon the part of the court to direct the defendants to withdraw their exceptions. They certainly did not stipulate so to do, and whatever arrangements may have been made in respect to justification, they were not thereby deprived of the right to have their exceptions remain of record. In this connection it may not be improper to call attention to rule 11 of the General Rules of Practice, which provides that no private agreement or consent between the parties or their at

torneys, in respect to the proceedings in a
cause, shall be binding, unless the same shall
have been reduced to the form of an order
by consent and entered, or unless the evi-
dence thereof shall be in writing, subscribed
by the party against whom the same shall
be alleged, or by his attorney or counsel.
This salutary provision seems to have been
wholly disregarded in this proceeding. All
stipulations or agreements entered into be-
tween counsel which are sought to be en-
forced by the court must comply with the
rule above stated. We think, therefore, that
the order appealed from should be reversed,
with ten dollars costs and disbursements,
and the motion denied, with ten dollars
costs. Patterson, O'Brien, Ingraham and
McLaughlin, JJ., concurred.
Harry B. Hollins and Others, Partners Doing
Business as H. B. Hollins & Co.,
nts,
v. Samuel T. Hubbard and Others, Partners
Doing Business as Hubbard, Price & Co., Re-
spondents.-Judgment affirmed, with costs.

Appeal from a judgment entered upon a verdict directed in favor of the defendants.VAN BRUNT. P. J.: Notwithstanding the claim upon the part of the appellants that there are differences in the facts presented to the court upon the present appeal which make the decision of this case upon the previous appeal inapplicable, we are not able to see that there has been any change such as affects the principles upon which the previous decision was founded. (91 Hun, 375.) The form of the letter which is claimed to be a delivery order, was not the point upon which the decision turned, as an examination of that case would show. And even if it were, as far as the legal aspects of the case are concerned, the facts remain precisely the same as they were with the exception that there was affirmative evidence that the letter from C. Green's Son & Co. to the defendants was not a delivery order in the usual form in use among merchants; there being no evidence whatever in the present case upon that subject, consequently, there is nothing to indicate to the court that it was such delivery order. The further point that there is no evidence now contained in the record that the defendants had no knowledge or notice that Hollins & Co. would take any action relying upon this letter in no way makes any material difference, because in order to create an estoppel the evidence must establish the facts upon which such estoppel rests. We think the judgment appealed from should be affirmed, with costs, upon the opinion on the previous appeal. Barrett, Rumsey and Patterson, JJ., concurred; Ingraham, J., dissented. Henry H. Lyman, as State Commissioner of Excise of the State of New York, Appellant, v. The True Friends Social and Literary Circle, Defendant, and Fidelity and Deposit Company of Maryland. Respondent.- Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Appeal in this action from an order denying plaintiff's motion for a retaxation of

costs.

PER CURIAM: The question presented on the
appeal from the order in this action is the
same as the question presented and deter-
mined in Lyman v. Young Men's Cosmopol
itan Club (ante, p. 220), and for the reasons
there stated the order must be reversed and
a new taxation directed before the clerk,
with leave to either party to use upon said
new taxation such further affidavits or pa-
pers as may be necessary and proper. The
order should be reversed, with ten dollars
costs and disbursements, and the motion
granted, with ten dollars costs. Present ----

38b 629 a165a534

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