of husband and wife, and made them substantially separate persons for all purposes. But the Court of Appeals has recently held that the unity of husband and wife has not been abrogated by those statutes. 92 N. Y., 152. Being in derogation of the common law they must be strictly construed. In some respects the unity of husband and wife has been abrogated, but in respect to other matters not covered by the statute the unity still exists, and they are still regarded as one person, and the law will not imply a promise on the part of one to pay the other.

This question has been practically settled in 44 N. Y., 343, 346. See also, 34 N. Y., 293; 30 Alb. Law J., 444. The case in 19 N. Y. Weekly Digest, 554, is clearly distinguishable. In that case there was an express promise to pay a specified sum weekly; and it is not in conflict with the views we have expressed in reference to implied contracts.

Judgment affirmed, with costs. Opinion by Haight, J.; Bradley and Childs, JJ., concur.

SURETYSHIP. ABANDON

MENT.

N. Y. SUPREME COURT. GENERAL

TERM. SECOND DEPT.

The Board of Commissioners of

Charities, &c., of the County of Kings, respt., v. Peter C. O'Rourke et al., applts.

Decided Dec., 1884.

The surety on an undertaking given on a conviction under Chap. 395, Laws of 1871,

relating to proceedings against husbands abandoning their wives in the county of Kings, is concluded by such conviction and cannot, in an action on the undertaking, again litigate the liability of his principal to support the woman who instituted the proceedings.

Appeal from judgment in favor of plaintiff.

Action to recover for breach of an undertaking executed by defendants on the conviction of Peter O'Rourke, under Chap. 395, Laws of 1871, relating to proceedings against men who have abandoned their wives in the county of Kings. The undertaking was in the penal sum of $300; recited said conviction on a charge of having abandoned his wife and having failed to provide for her according to his means, with which offense he was charged on the oath of one Lizzie O'Rourke, and was conditioned that said Peter O'Rourke should be of good behavior for one year, and for the payment of $4 weekly for the support of his wife to plaintiff. The breach alleged was the failure to pay the money.

The surety alone answered, setting up that the conviction was for the abandonment by the principal defendant of his wife, Lizzie O'Rourke, and his failure to support her, and that the bond was given to relieve the county of Kings from the support of Lizzie O'Rourke as a pauper, and to compel Peter O'Rourke to support her, and that Lizzie O'Rourke was

not the wife of Peter O'Rourke.

On the trial the execution of the undertaking and the breach thereof, by a failure to pay the money, was not disputed, and it was ad

aside a judgment entered on a remittitur of the Court of Appeals.

Appeal from order setting aside a judgment and granting leave to plaintiff to file and serve a supplemental complaint.

This action was brought to foreclose a mortgage and to vacate the satisfaction of a mortgage held by appellants, who defended and claimed priority for their mortgage. The Special Term decided in favor of the validity of plaintiff's mortgage, but decided that the mortgage held by appellants was in their hands a prior lien and that plaintiff was not entitled to subrogation to their rights under their mortgage and the guaranty of payment held by them from R. & Co. The judgment entered thereon was affirmed by General Term, but the Court of Appeals modified it so as to subrogate plaintiff to all the rights of appellants under their mortgage and guaranty on payment of the amount due for principal, interest and costs. 19 W. Dig., 8.

The order in question vacates and sets aside the judgment so modified, entered on the remittitur of the Court of Appeals.

E. A. Brewster, for applts. H. Bacon, for respt. Held, Error. The judgment of the Supreme Court was not entirely reversed, but only that portion of it which denied to plaintiff substitution to the place to the place and rights of M. & V. The Court of Appeals held and decided that as to them plaintiff was a junior incumbrancer and possessed of the rights incident to that relation;

that she was entitled to the securities of the senior incumbrancer and should be permitted to redeem the mortgage and acquire all the rights of the holders. The law of the case, therefore, is settled by the Court of Appeals and cannot be unfixed by any action of this court. The Supreme Court is without power to reverse the judgments of the Court of Appeals; neither can it nullify the decisions of that court by setting aside its judgments entered on its remittitur in the Supreme Court. Because, if that could be done, then the Supreme Court would be in possession of the power to control all the judgments and decis ions of the Court of Appeals. For this, of course, respondent does not contend, and yet the argument put forward in her behalf, if followed to its logical conclusions, leads to that result. Doubtless the judgments of the Court of Appeals, after they become the judgments of the Supreme Court, may be opened and modified by this court in furtherance of justice in many ways, but they cannot be swept entirely aside. The order appealed from, therefore, proceeds too far, and further than the necessities of plaintiff require. She cannot litigate again the questions settled by the Court of Appeals in this action and this court cannot place her in a position to do so by setting aside the judgment of that court. The decision of that court would prevail, even if the record of its judgment was vacated.

The necessities of plaintiff will be supplied by permission to file

of the bank, to recover damages sustained by the loss of their stock and an assessment thereon besides, resulting from the negligence of defendants. The answer denied the negligence and set up the six year and the three year statutes of limitations.

On Jan. 27, 1883, eight other stockholders were, on their petition, permitted to unite as plaintiffs, and an amended complaint was thereafter served, to which the same answer was interposed.

On the trial evidence was offered by plaintiffs tending to establish the cause of action alleged in the complaint for losses arising from transactions between the years 1871 and Dec. 31, 1876. An objection to this evidence was sustained on the ground that the action was three years. subject to the limitation statute of

Plaintiffs' counsel stated that they could offer no evidence of transactions by defendants tending to establish the cause of action set out in the complaint which had not been completed at some time between the year 1871 and Dec. 31, 1876, asked permission to present proofs of such transactions and to go to the jury thereon. This was denied, and the complaint was on motion dismissed.

J. F. Schlosser, for applts. Thompson, Weeks & Latting, for respts.

Held, No error; that the eight additional plaintiffs are beyond the six years' statute of limitation, and left without a remedy. The commencement of the action by Brinkerhoff neither arrested nor

delayed the running of the statute for them. It simply left an opening for them to come in and be made parties as they did. But if they remained inactive until their remedy expired and was lost by lapse of time it was not saved by the original commencement. 6 Paige, 655.

That the application of the three years statute of limitation was proper. Code, § 394. It has plain application to all actions brought to enforce a legal liability, or liability created by law, coming within its scope and operation. To limit the application of this section to actions for liabilities created by the statutes of this State against directors of monied corporations organized under a state law would be placing a restriction on the statute unintended by the legislature. If such had been the legislature's intention nothing was easier than to give it appropriate expression. The liability of directors of corporations for violations of duty exists independently of any statute, and so in a comprehensive view it is created by law and falls within the intention and operation of this section of the Code. They are the agents of the corporation, and if they transcend their powers or abuse their trust their liability rests on the same principle that imposes liability on the agents of individuals.

It is claimed that plaintiffs had no right of action against defendants until the refusal of the receiver to sue, and therefore the statute did not begin to run until that time. Held, Untenable. The right of

action accrued with the perpetration of the wrongs by defendants, and was never suspended. Plaintiffs were under no disability, for while the right to commence actions of this character is generally vested primarily in the corporation while it remains in the exercise of its corporate formation, yet even that right did not exist here, because the corporation was still under the control of the parties against whom the misconduct was alleged and the recovery was sought. The receiver was in the same predicament, for he was a blameful director. See 88 N. Y., 52. The cause of action is the negligence and misconduct of defendants, and that is complete when the violation of duty is brought to a consummation, and it must follow that the statute of limitation is running for a bar to the action from that time.

It is also claimed that the statute was not set running until the assessment against plaintiffs was made and paid.

Held, Untenable. That assessment was the result of defendants' negligence and misconduct, which is the sole and only cause of action set out in the complaint. There is no claim to recover for money paid out, but for damages sustained. The wrongful acts complained of constituted the cause of action, and not the effect it produced nor the damage it occasioned, and the statute runs from the accruing of the cause of action.

Also held, That § 394, Code Civ. Pro. applies to this case. The section is capable of a construction