App. Div.] FIRST DEPARTMENT, MAY TERM, 1902. The submission also contains the further statement to the effect that on the 23d of November, 1901, Delia C. Robinson was physically unable "to make actual delivery of the bonds" referred to in the indorsement, "because of her feeble condition and because the bonds were in the custody of the Westchester County National Bank," and also that there were sufficient funds belonging to the decedent's estate in the defendant's hands to pay all the legacies named in the will of the deceased and all the claims against her estate, and that the plaintiff is her only next of kin. The submission does not contain a copy of the will; therefore it is difficult to determine, except inferentially, to whom the bonds in question would belong under the will if the gift to the plaintiff were held invalid. But in view of the statement contained in the submission, to the effect that there is sufficient other property to pay all of the legacies, as well as all of the debts of the deceased in full, and that the plaintiff is the only next of kin, that fact is of no importance. If this be true, then, really, the only question is whether the plaintiff is entitled to the bonds instead of the proceeds of them, which may mean much as a matter of sentiment, but in fact only involves the executor's fees. However this may be, which is unnecessary to determine, we are of the opinion that the plaintiff was entitled to the bonds; that what was done constituted a good gift, inter vivos. Actual delivery, by reason of the illness of the owner of the bonds, and their possession at that time by the bank, was physically impossible, but there was present, as evidenced by the writing of the deceased, not only the intention to then give, but also the intention to then deliver the thing given. The owner did all she could do in this respect. It was a good constructive or symbolical delivery, and this, under the circumstances, was sufficient to vest good title in the plaintiff. (14 Am. & Eng. Ency. of Law [2d ed.], 1021, and cases cited.) The plaintiff, therefore, is entitled to judgment directing the executor to deliver to her the bonds here in question, with costs. VAN BRUNT, P. J., PATTERSON, O'BRIEN and LAUGHLIN, JJ., concurred. Judgment ordered for plaintiff, with costs. FIRST DEPARTMENT, MAY TERM, 1902. [Vol. 72. WILLIAM T. GILBERT, as Receiver of COMMERCIAL ALLIANCE LIFE INSURANCE COMPANY, Appellant, v. EDWARD L. FINCH and Others, Respondents. Insurance company — payment of its money to the incorporators of a mutual insurance company, to secure their resignation as such and the substitution of persons representing the purchasing company — it is ultra vires on the part of both companies it transfers no property interest — it is a waste of the funds of the purchasing company liability of directors consenting to it not released by a compromise with the incorporators of the mutual company sued by a receiver of the purchasing company for money had and received-effect of a release by the purchasing company to one of its directors - a verdict cannot be directed in the absence of the jury. The directors of the Commercial Alliance Insurance Company, a corporation organized under the laws of the State of New York, entered into negotiations with the surviving incorporators of the Maine and New Brunswick Insurance Company, a mutual insurance corporation, organized under the laws of the State of Maine, for the purchase and control of the latter company by the former. In pursuance of this purpose the directors of the Commercial Alli ance Company paid from the funds of that company $3,500 to each of the ten incorporators of the Maine and New Brunswick Company and received from them an assignment of "all their right, title and interest as corporators, associates or otherwise, in said Maine and New Brunswick Insurance Company." Simultaneously therewith the officers and directors of the Maine and New Bruns wick Company resigned and their places were filled by persons acting on behalf of the Commercial Alliance Company. Some two months later the Maine and New Brunswick Company was declared insolvent and a receiver was appointed to wind up its affairs. Thereafter the Commercial Alliance Company also passed into the hands of a receiver, who brought an action against the incorporators of the Maine and New Brunswick Company to recover the $35,000 paid to them, which action was compromised upon payment of $25,000 by the incorporators of the Maine and New Brunswick Company. In an action brought by the receiver of the Commercial Alliance Company against the directors of that company to recover the balance of the $35,000, with interest, it was Held, that the plaintiff was entitled to recover; That, assuming that the good will of the Maine and New Brunswick Company was valuable, that company had no power to sell such good will and the Commercial Alliance Company had no power to purchase it; That the incorporators of the Maine and New Brunswick Company had no interest therein which could be the subject of a sale; That the payment of the $35,000 to the incorporators of the Maine and New Brunswick Company was not only an ultra vires act, but that it constituted a App. Div.] FIRST DEPARTMENT, MAY TERM, 1902. waste of the funds of the Commercial Alliance Company which rendered those who consented to such waste liable to respond to the stockholders and creditors of the Commercial Alliance Company for the money thus wasted; That the fact that the directors of the Commercial Alliance Company acted in good faith, upon the supposition that the payment of the $35,000 would operate for the best interests of the Commercial Alliance Company, did not relieve them from liability; That the release of the incorporators of the Maine and New Brunswick Company upon the payment of $25,000 to the plaintiff did not relieve the defendants from liability, as the defendants and the incorporators of the Maine and New Brunswick Company were not joint tort feasors; That the fact that upon the settlement of an action brought by one of the defendants against the Commercial Alliance Company prior to the appointment of the plaintiff as receiver, releases were exchanged, did not operate to relieve any of the defendants from liability, especially as it did not appear that the execution of such release was authorized by the board of directors or the executive committee of the Commercial Alliance Company as required by one of its by laws; That if the release had been so authorized it would be ineffective, as the directors of a corporation cannot waste the funds of a corporation and then relieve themselves from liability by a release granted by themselves or their co-directors. A verdict contemplates the presence of both the court and a jury, and consequently the court has no power to direct a verdict after the jury have been discharged. APPEAL by the plaintiff, William T. Gilbert, as receiver of Commercial Alliance Life Insurance Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of July, 1901, upon the verdict of a jury rendered by direction of the court dismissing the plaintiff's complaint. Henry D. Hotchkiss, for the appellant. " Michael H. Cardozo, for the respondent Ackerman. Albert Stickney, for the respondents Finch and others. MCLAUGHLIN, J.: This appeal is from a judgment dismissing the complaint entered. on a verdict directed by the court. There is little or no dispute as to the material facts involved. The complaint alleges, and the evidence adduced upon the trial establishes, that the Commercial Alliance Insurance Company was incorporated in 1888 under the statutes of the State of New York, and that immediately following its incor FIRST DEPARTMENT, MAY TERM, 1902. [Vol. 72. poration it commenced, and thereafter continued, to do business. until October, 1894, when the plaintiff was appointed receiver in an action brought for that purpose by the Attorney-General of the State; that on and prior to the 3d of May, 1893, the defendants and other persons beyond the jurisdiction of the court were the directors of such company, and as such entered into negotiations with the surviving incorporators (ten in number) of the Maine and New Brunswick Insurance Company, a corporation organized under the laws of the State of Maine, for the purchase and control of the latter company by the former; that such negotiations were finally consummated on the day last mentioned, when one Dunham, the president of the Commercial Alliance Company, acting in pursuance of the direction of the defendants and their associate directors, took from the funds of such company $35,000 and paid the same to the ten surviving incorporators of the Maine and New Brunswick Company, for "a valuable consideration," as expressed therein, and in connection with such bill of sale, Dunham and three others (all of whom were directors of the Commercial Alliance Company) received a transfer or assignment from such surviving incorporators, at the expressed consideration of $3,500 each, of "all their right title and interest as corporators, associates or otherwise, in said Maine and New Brunswick Insurance Company;" that simultaneously with the execution and delivery of such papers, under an agreement previously made, all of the officers and directors of the Maine and New Brunswick Company resigned, and their places were filled by some of the defendants or persons acting for or on behalf of the Commercial Alliance Company; that on the 22d of July, 1893, the Maine and New Brunswick Company was judicially declared by the Supreme Judicial Court of Maine to be insolvent, and a receiver was appointed to wind up its affairs and distribute its assets among its creditors; that shortly thereafter, in an action brought by this plaintiff in the United States Circuit Court for the district of Maine, against the ten surviving incorporators of the Maine and New Brunswick Company, to recover the money paid to them, aggregating $35,000, the plaintiff received as a compromise of such action the sum of $25,000, and this action was brought to recover the difference between said sum and the $35,000 paid to them, together with interest thereon. It also appeared that the defendant Miller, App. Div.] FIRST DEPARTMENT, MAY TERM, 1902. some time prior to February 10, 1894, brought an action against the Commercial Alliance Insurance Company, which was settled by the payment to him of $8,000, and thereupon mutual releases were exchanged, the consideration expressed therein being $1. At the close of the trial each party moved for the direction of a verdict. The motions were denied and thereupon the counsel for the plaintiff asked that the issues of fact be submitted to the jury, which request was granted, the court, however, refusing (notwithstanding it was requested so to do by defendant's counsel) to state to the jury the issues submitted. The jury were unable to agree upon a verdict and were by consent of all the parties discharged, after which the court directed a verdict for the defendants, to which an exception was taken by the plaintiff. Before considering the merits involved in the appeal it may not be out of place to call attention to the fact that the practice pursued, so far as the same relates to or is involved in the direction of the verdict, was not only irregular, but was entirely unauthorized. A verdict contemplates, and necessarily involves, the presence of both court and a jury, and whenever it is directed it is absolutely necessary that both be present. There can, from the very nature of things, be no such thing as a verdict directed unless both the court and jury are present, because in such verdict there is involved an order by the court and an execution of the same by the jury. Once a jury has been discharged, the court has no power to direct a verdict, because there is not only no one to direct, but no one to execute the direction. Therefore, the exception taken to the direction in this case would, in and of itself, necessitate a reversal of the judgment appealed from, were it not for the fact that it was conceded upon the argument before us that the objection made and exception taken were not directed to the practice adopted; and in connection with this concession, a request was made on the part of counsel for both of the parties that the error be overlooked and the case decided upon the merits. merits, we are of the As already indicated, Upon the facts as here Passing, then, from this question to the opinion that the judgment must be reversed. there is little or no conflict as to the facts. inbefore stated, the real question is, whether the directors of an insurance company can take its property and assets and give them |