Borst agt. Baldwin.

and not out of the property of Baldwin; and to use all lawful means, by execution and supplemental proceedings, to enforce the collection of the judgment out of the property of Adams; and Baldwin agreed to pay Ausman, in bank-note engraving and printing on demand, a sum not exceeding $680.62, or any deficiency less than that sum, which could not be collected out of Adams; and on payment of such deficiency, not exceeding $680.62, Baldwin was to be released from the judgment.

The complaint in this case, after alleging substantially these facts, alleges that this settlement and the agreement under which the judgment was entered were all brought about by the fraud of Baldwin, setting out the facts and circumstances, and the alleged false representations of Baldwin, to show the fraud; that Adams was insolvent and Baldwin knew it; that nothing had been or could be collected of Adams, although execution had been issued on the judgment, and supplemental proceedings instituted against him; that Baldwin's fraud was first discovered by Ausman and the plaintiff, when the execu tion was issued; that Baldwin was and is responsible, and that the claim could have been, and could now be, collected of him; that before the commencement of the action, the said "Ausman, for a valuable consideration, sold, assigned and transferred the said judgment," against Adams and Baldwin, to the plaintiff, and that the said Adams and Baldwin are indebted to the plaintiff on the judgment, in the sum of $1,465.01, with interest thereon from November 28th, 1856.

On these facts, the plaintiff asks in his complaint that the said stipulation or agreement may be set aside and declared null and void, and for such other relief as the court may think proper to grant.

The defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause of action.

The question and the only question raised by the demurrer is, whether the plaintiff, as the assignee of the judgment merely, conceding Ausman's right on the discovery of the fraud to bring this action and ask for the relief asked for by the plaintiff, can bring the action or has any right to such relief?

The Reformed Protestant Dutch Church agt. Brown.

Ausman, on his discovery of the fraud, could have considered the judgment void or voidable, and could have instituted an action or proceedings to set aside the stipulation and judg ment, and have them declared void on the ground of the fraud, or he could affirm the judgment and stipulation, and hold Baldwin personally responsible in an action for the deceit or fraud.

Ausman's assignment of the judgment to the plaintiff was an affirmance of the judgment by Ausman, and may have left in him the action, or right of action, against Baldwin for the fraud, but the assignment of the judgment could not carry with it this right of action for the fraud; nor was it susceptible of assignment so as to give the assignee a right of action in his own name. (Zabriskie agt. Smith, 3 Kernan, 322.)

The plaintiff took the judgment with a knowledge of the stipulation restricting its operation, and must be presumed to have taken it subject to the stipulation, and, in fact, to have taken the stipulation as a part of the judgment; and it would be very extraordinary if it could be presumed that the plaintiff took under the assignment of the judgment a right at the same time and by the same assignment to attack and repudiate the judgment.

In my opinion the complaint shows no cause of action in the plaintiff, and the defendant must have judgment on the demurrer with costs.

SUPREME COURT.

THE REFORMED PROTESTANT DUTCH CHURCH agt. SUSAN D.
BROWN, executrix, &c.

Where a religious society made a preliminary organization, and, after the articles
of association had been executed, the defendant's testator told those in charge
of the erection of the church edifice to go on and finish it, and he would pay
his subscription,

Held, that this promise was a sufficient waiver of the conditions in the original subscription, and the going on and finishing the church constituted a sufficient consideration to sustain the promise.

ZEYUZZI

PAUTA

་

J

The Reformed Protestant Dutch Church agt. Brown.

A subscription made before a corporation is in esse, with a view to a future incorporation, is binding, and the corporation when organized can sustain an action upon it.

New-York General Term, May, 1859.

By the court-PRATT, Justice. In this case it does not ap pear that any promise was made by the defendant to pay her subscription after the plaintiffs were actually and legally incorporated. But it does appear that after the society had made a preliminary organization, and after the articles of association had been executed, the testator frequently told those in charge of the erection of the church edifice to go on and finish it, and he would pay his subscription. This was clearly a sufficient waiver of the conditions in the original subscription; and the fact that the society, on the faith of this and similar promises from others, went on and finished the church edifice, constitutes a sufficient consideration to sustain these promises.

The only remaining question of any moment is, that the plaintiffs had no legal existence at the time of the testator making the promises upon which the action is predicated.

It is claimed that, such being the fact, the plaintiffs could not be a party to the contract. But it has been repeatedly decided that a subscription made before a corporation was in esse, with a view to a future incorporation, was binding, and that corporation, subsequently organized, could sustain an action upon it. (Hamilton and Deansville Plank Road Company agt. Rice, 7 Barb. 157; Stanton, President, agt. Wilson, 2 Hill, 153; Trustees of Farmington Academy agt. Allen, 14 Mass. R. 172.) In this case the promises were made for the benefit of the society thereafter to be incorporated. All parties contemplated the subsequent incorporation of the society, and although the promises were made just before such incorporation, yet a portion of the work was done afterwards. Upon such incorporation, therefore, the society became vested with the claims against those who had agreed to pay for erecting the church edifice. I think, therefore, that the judgment should be affirmed.

Judson agt. Gray.

COURT OF APPEALS.

ROSWELL JUDSON, respondent, agt. DANIEL GRAY, appellant.

The court below, while an appeal is pending in the court of appeals, as they formerly had after writ of error brought, have still control over the judgment in regard to making amendments, and the judgment is still regarded as remaining in that court for all the purposes of amendments. After the remittitur has issued from the court of appeals under the seal of that court, and has been delivered to the prevailing party, as is the practice in that court, with a view to have it remitted to the court below, the latter court have jurisdiction of the cause, although the remittitur is not actually filed with the clerk below; and if a new trial has been awarded, the court below may go on and try the cause.

And where, on such trial, it appeared that the defendant's attorney had the remittitur in his hands, which he had neglected to file, and permitted the plaintiff to go nearly through with the trial, supposing the remittitur had been filed, and the defendant then sprung the point that the remittitur had not been filed, and the court had no jurisdiction of the case,

Held, that the defendant could not thus take advantage of his own wrong; he was estopped from urging such an objection, if otherwise good, which it was

not.

Where a decree and order of reference to take and state an account of the rents and profits, and the amount, if any thing, due upon the mortgage, after applying the rents and profits towards its payment, is put into the hands of the referee to execute, by the attorney for the plaintiff, the plaintiff becomes liable for the referee's fees. Neither party can be said to be the prevailing party in the suit, by any report which the referee may make in stating such accounts. That question has to be determined by the final decree on the merits. Where the plaintiff's attorney requested the plaintiff to give him his note for the amount of the referee's fees, with a promise that he would advance to the referee such fees and the note was given accordingly; held, that the referee could sustain an action against the attorney, upon his promise thus made. Whatever may be said in regard to the rule in England, about which there has been great conflict, the doctrine with us is settled, that an action may be maintained on a promise made by the defendant to a third person, for the benefit of the plaintiff, without any consideration moving from the plaintiff. All that is necessary is, that the promise be made upon a valid consideration moving from I' such third person.

THIS action was to recover for services rendered by the plaintiff (respondent), as referee in a cause commenced in the VOL. XVII.

19

Judson agt. Gray.

court of chancery, and brought into and continued in the 6th judicial district, wherein Absalom Calkins was complainant, and Asa M. Calkins et al. were defendants.

The bill filed in the suit last stated was filed to redeem certain premises from the lien of a mortgage. The mortgagee and those claiming under him had been in possession of the prem ises for many years, and Calkins, the mortgagor, sought in that suit to redeem and to compel the defendants to account for the rents and profits, and the reference which was made in the suit, to this plaintiff as referee, was to take and state an account of the rents and profits, and the amount, if any, due upon the mortgage, after applying the rents and profits towards the payment of the mortgage. The defendant in this suit (Gray) was the solicitor of Calkins in that suit, and as such put the decree and order of reference into the plaintiff's hands to execute, and the matter was brought to a hearing before said referee, on a notice given to the other party by the defendant Gray, as solicitor for Calkins; who made his report, stating an account of the rents and profits. The plaintiff, as referee, took from 1500 to 2000 folios of evidence, all of which was taken for the complainant in the chancery suit, in which the present defendant was the solicitor for the complainant.

On the second hearing before the referee, the attorneys for the respective parties agreed, verbally, that the referee should charge his expenses in addition to his per diem allowance by statute, if he would take the testimony at South New Berlin, nineteen or twenty miles from the referee's residence; although the agreement was not in writing, it was acquiesced in by defendant. The plaintiff's fees, as referee, were duly taxed before Justice MASON, December 4th, 1849, at $155.94.

The plaintiff obtained a judgment in the supreme court, which was appealed to this court, and by this court reversed (1 Kernan, 408), the plaintiff not having declared on the defendant's promise to pay the plaintiff for said services as referee. Accordingly the plaintiff in November, 1854, by motion amended his complaint, by declaring on the promise, and the defendant put in an amended answer, denying the promise,