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aside a judgment entered on a remittitur of that she was entitled to the securi. the Court of Appeals.

ties of the senior incumbrancer and Appeal from order setting aside should be permitted to redeem the a judgment and granting leave to mortgage and acquire all the plaintiff to file and serve a supple- rights of the holders. The law of mental complaint.

the case, therefore, is settled by This action was brought to fore- the Court of Appeals and cannot close a mortgage and to vacate the be unfixed by any action of this satisfaction of a mortgage held by court. The Supreme Court is appellants, who defended and without

to reverse the claimed priority for their mort- judgments of the Court of Ap. gage. The Special Term decided peals; . neither can it nullify the in favor of the validity of plain decisions of that court by setting tiff's mortgage, but decided that aside its judgments entered on its the mortgage held by appellants reniittitur in the Supreme Court. was in their hands a prior lien and Because, if that could be done, that plaintiff was not entitled to then the Supreme Court would be subrogation to their rights under in possession of the power to contheir mortgage and the guaranty trol all the judgments and decisof payment held by them from ions of the Court of Appeals. For R. & Co. The judgment entered this, of course, respondent does thereon was affirmed by General not contend, and yet the argument Term, but the Court of Appeals put forward in her behalf, if folmodified it so as to subrogate lowed to its logical conclusions, plaintiff to all the rights of appel- leads to that result. Doubtless lants under their mortgage and the judgments of the Court of Apguaranty on payment of the peals, after they become the judg. amount due for principal, interest ments of the Supreme Court, may and costs. 19 W. Dig., 8.

be opened and modified by this The order in question vacates

question vacates court in furtherance of justice in and sets aside the judgment so many ways, but they cannot be modified, entered on the remittitur swept entirely aside. The order of the Court of Appeals.

appealed from, therefore, proceeds E. A. Brewster, for applts. too far, and further than the necesH, Bacon, for respt.

sities of plaintiff require. She canHeld, Error. The judgment of not litigate again the questions the Supreme Court was not en settled by the Court of Appeals in tirely reversed, but only that por- this action and this court cannot tion of it which denied to plaintiff place her in a position to do so by substitution to the place and setting aside the judgment of that rights of M. & V. The Court of court.

The Court of court. The decision of that court Appeals held and decided that as would prevail, even if the record to them plaintiff was a junior in- of its judgment was vacated. cumbrancer and possessed of the The necessities of plaintiff will rights incident to that relation ; I be supplied by permission to file

and serve her supplemental com of the bank, to recover damages plaint setting forth the facts that sustained by the loss of their stock have transpired subsequent to the and an assessment thereon besides, filing of the original. Then she resulting from the negligence of will be in a position to present all defendants. The answer denied the new questions that have arisen the negligence and set up the six and reap all the benefits of the de- / year and the three year statutes of cision of the Court of Appeals in limitations. her favor.

On Jan. 27, 1883, eight other Order reversed so far as it sets stockholders were, on their petiaside the judgment and that part tion, permitted to unite as plainof motion denied ; and affirmed so tiffs, and an amended complaint far as it grants permission to file was thereafter served, to which supplemental complaint, without the same answer was interposed. costs.

On the trial evidence was offered Opinion by Dykman, J.; Bar- by plaintiffs tending to establish nard, P.J., and Pratt, J., concur. the cause of action alleged in the

complaint for losses arising from

transactions between the years LIMITATION.

1871 and Dec. 31, 1878. An objecN. Y. SUPREME COURT. GENERAL tion to this evidence was sustained TERM. SECOND DEPT.

on the ground that the action was

subject to the limitation statute of Theodore Brinkerhoff et al., three years. applts., v. Henry Bostwick et al, Plaintiff's' counsel stated that respts.

they could offer no evidence of Decided Dec., 1884.

transactions by defendants tend

ing to establish the cause of action The short statute of limitations of three years contained in § 394 of the Code ap.

set out in the complaint which plies to all actions against directors of a

had not been completed at some bank to enforce legal liabilities, and is not time between the year 1871 and limited to actions for liabilities created by Dec. 31, 1876, asked permission to

statute. The cause of action against a director for present proofs of such transactions

negligence or misconduct accrues when the and to go to the jury thereon, violation of duty is brought to a consum This was denied, and the complaint mation and not from the time an assessment

was on motion dismissed. created thereby is imposed.

J. F. Schlosser, for applts. Appeal from judgment entered Thompson, Weeks & Latting, on dismissal of complaint.

for respts. This action was brought by Held, No error; that the eight Thomas Brinkerhoff, a stock hold- additional plaintiffs are beyond er of the National Bank of Fish- the six years' statute of limitation, kill, on the 10th of Jan., 1880, in and left without a remedy. The behalf of himself and all the other commencement of the action by stockholders, against the directors 'Brinkerhoff neither arrested nor

was

delayed the running of the statute action accrued with the perpetrafor them. It simply left an open- tion of the wrongs by defendants, ing for them to come in and be and was never suspended. Plain. made parties as they did. But if tiffs were under no disability, for they remained inactive until their while the right to commence ac. remedy expired and was lost by tions of this character is generally lapse of time it was not saved by vested primarily in the corpora the original commencement. 6 tion while it remains in the exerPaige, 655.

cise of its corporate formation, yet That the application of the three even that right did not exist here, years statute of limitation was because the corporation was still proper. Code, $ 394. It has plain under the control of the parties application to all actions brought against whom the misconduct was to enforce a legal liability, or lia- alleged and the recovery bility created by law, coming with sought. The receiver was in the in its scope and operation. To same predicament, for he was a limit the application of this section blameful director. See 88 N. Y., to actions for liabilities created by 52. The cause of action is the the statutes of this State against negligence and misconduct of dedirectors of monied corporations fendants, and that is complete organized under a state law would when the violation of duty is be placing a restriction on the brought to a consommation, and statute unintended by the legisla- it must follow that the statute of ture. If such had been the limitation is running for a bar to legislature's intention nothing was the action from that time. easier than to give it appropriate It is also claimed that the statute expression. The liability of was not set running until the directors of corporations for viola assessment against plaintiffs was tions of duty exists independently made and paid. of any statute, and so in a com Held, Untenable. That assessprehensive view it is created by ment was the result of defendants' law and falls within the intention negligence and misconduct, which and operation of this section of the is the sole and only cause of action Code. They are the agents of the set out in the complaint. There corporation, and if they transcend is no claim to recover for money their powers or abuse their trust paid out, but for damages sustheir liability rests on the same iained. The wrongful acts comprinciple that im poses liability on plained of constituted the cause of the agents of individuals.

action, and not the effect it proIt is claimed that plaintiffs had duced nor the damage it occasionno right of action against defend- ed, and the statute runs from the ants until the refusal of the receiver accruing of the cause of action. to sue, and therefore the statute Also held, That $ 394, Code Civ. did not begin to run until that time. Pro. applies to this case. The

Held, Untenable. The right of section is capable of a construction

that will give it a prospective oper

WILLS. TRUSTS. ation, and is incapable of any other. It furnishes a rule for fut N. Y. COURT OF APPEALS. ure actions in cases arising subse

Bailey, exr., applt., v. Bailey quent to its enactment. See 24

et al., respts. Hun, 464; 87 N. Y., 441. This view of the section would rescue

Decided Dec. 2, 1884. the case from its operation and Testator by his will devised the use and in leave the former statute applicable come of his house and lot to his wife in but for $ 414. That section provides

lieu of dower and provided on her death exemption for all causes of action

they should become a part of the residue of

the estate. The residue was devised to the existing at the time of its adop

executor in trust to receive the rents, &c., tion from the system of limitation and pay them to beneficiaries named durin Chap. IV., and furnishes a short ing the lives of two persons who were statute of limitation of two years

strangers to the trust. Held, That the trust

was valid and did not unduly suspend the for the control of actions com

power of alienation ; that no trust was menced thereon. It applies to all created during the life of the widow in the causes of action accrued at that property devised in lieu of dower, and that time, and limits the right to all

on a refusal by the widow to accept the de

vise it became inoperative. remedies thereon, unless pursued within two years.

It was design This action was brought for the ed to have retroaction, and as it construction of certain portions of affords a reasonable time and the will of B. By the fifth clause opportunity for the assertion of of bis will, after bequeathing to all legal rights then existing, it his wise certain property, B. dewas within the competency of the vised to her the use and income of legislature to make it. The cause

The cause the house where he resided, and of action asserted by plaintiffs declared that “ upon her death accrued previous to Jan. 9, 1877, the said house and lot to become and so was in existence on the 1st a part of the residue of my estate, of Sept., 1877, when § 414 of the and to be disposed of as hereinCode became a law. Under it after provided.” The will further plaintiffs had two years within provided that the above bequest to which to commence their action, the testator's wife should be in but they did not begin the same lieu of any and all right of dower. until Jan. 10, 1880. They did not

The residue of the estate was institute before the expiration of devised by B. to his executor, in two years after the section took trust, to receive the rents and effect; therefore the provision of income and divide the same into $ 394 constitutes the rule of limit four parts and to pay each of ation applicable to their action. said parts to beneficiaries named

Judgment affirmed, with costs. during the lives of two persons

Opinion by Dykman J. ; Pratt, who are strangers to the trust. J., concurs; Barnard, P. J., not Calvin Frost, for applt. sitting.

Samuel Hand, William F. CogsVol. 20.-No. 20a.

well and Lucien B. Chase, for an order of General Term, reversing an order respts.

of confirmation of the report of Commis

sioners of Appraisal, and directing a new Held, That the trust was valid

appraisal before new commissioners, is not and did not unduly suspend the final, and no appeal lies therefrom to the power of alienation.

Court of Appeals. Also held, That no trust was

Commissioners of Appraisal created during the life of the awarded to the city of New York widow in the property devised to $25,000 for lands taken by the peher in lieu of dower, and she had titioner. The award was confirmed the absolute right to dispose of by an order of the Special Term her interest therein. The gift of of the Supreme Court, which dithe use and income was equivalent rected the petitioner to pay the to a devise of the land itself dur sum awarded to the city chambering the life of the widow, and she lain, for the use of the city, purhad a legal title and was entitled suant to. Sec. 17 of Chap. 140, to possession of the same. 3 Laws of 1850, which provides that Washb, on R. P., 450 ; 2 Johns. the order confirming the report of on Wills, 534; 80 N. Y., 324; 3 the commissioners shall “ direct Barb. Ch., 76.

to whom the money is to be paid, Also held, That upon a refusal of or in what manner it shall be dethe widow to accept the devise it posited by the company.” The became inoperative.

order was entered Oct. 22, 1869, Downing v. Marshall, 23 N. Y., and in pursuance thereof, on Oct. 366, distinguished.

26th, the company paid the award Judgment of General Term, to the chamberlain, who gave bis affirming judgment of referee, receipt for it. On the next day modified, and as modified af- the city appealed from the order firmed.

to the General Term, where the Opinion by Miller, J. All con order was reversed, and a new ap

praisal before newly appointed

commissioners ordered. The comEMINENT DOMAIN. APPEAL. pany moved, at General Term, to N. Y. COURT OF APPEALS.

dismiss the appeal on the ground

that the city had received the In re petition of the N. Y. & amount of the award, and thereby H. RR. Co. to confirm report of waived its right of appeal. This Commissioners of Appraisal. motion was denied. The company Decided Jan. 20, 1885.

has appealed from the order of

denial and the order of reversal Where, on taking land for railroad purposes, an award was made to the city which

to this court. There was no proof was paid to the chamberlain as directed, that the city had ever taken or Heu, That he was only a depositary, and used the money paid the chamberthat in the absence of proof that the city had

lain. taken or used the money his receipt thereof could not be held a waiver of the right to

H. H. Anderson, for applt. appeal.

D. J. Dean, for respt.

cuir.

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