Misc.] Supreme Court, July, 1896. originally announced by the defendant the latter did not let the matter drop, but went on, got his original price, making the terms as to ready money so that the purchaser could comply with them, and in this manner the sale went through. In other words, the defendant did just as he told the plaintiff he would do after the plaintiff brought him the buyer he did the rest himself. The plaintiff having brought the parties together, and there being no intervening agency, the delay in closing the purchase does not deprive him of his brokerage (Morgan v. Mason, 4 E. D. Smith, 636); nor did the fact that the defendant subsequently modified his terms as to the mode of payment effect such a result. Gold v. Serrell, 6 Misc. Rep. 124; Atwater v. Wilson, 13 id. 117; Levy v. Coogan, 9 N. Y. Supp. 534; Dailey v. Young, 13 id. 435. Indeed, the change put the parties in the same position in respect. to the subject of the contract as if the defendant had in the first instance employed the plaintiff to sell on the terms he took himself. Dailey v. Young, supra. There was evidently no revocation of the plaintiff's authority, for the defendant's refusal to pay was based on the sole ground that the plaintiff had not sold to Reedy on the terms of the original employment. The plaintiff testifies that when he demanded his brokerage the defendant said, "This thing did not pan out as I expected it would; I didn't get the amount of cash I expected"; plaintiff then said, "But you sold the place for $8,000"; to which the defendant replied, "Yes, but he had but little cash "; and defendant then said, "he would give me some compensation." The acts and sayings of the parties are totally inconsistent with the proposition urged by the defendant on the argument that the plaintiff's authority had been revoked, or that he or the purchaser had prior to the sale abandoned further efforts to consummate the same. It cannot therefore be seriously contended that there was an entire absence of evidence to support the facts upon which the plaintiff depended to sustain his action; on the contrary, there was ample to require the submission of the issues to the jury. We cannot review the weight of evidence or consider the question of credibility of witnesses, as the affirmance by the General Term is conclusive upon those subjects. Gold v. Serrell, supra; Arnstein v. Haulenbeek, 16 Daly, 382; Smith v. Pryor, id. 169; Rowe v. Comley, 11 id. 318; Gundlin v. Packet Co., 8 Misc. Rep. 291. Supreme Court, July, 1896. [Vol. 17. The rulings of the court on four of the defendant's requests to charge have been criticised; but as applied to the facts of the case there is no merit in the exceptions taken thereto. The jury rendered a verdict in favor of the plaintiff for $250, a sum less than the plaintiff was entitled to receive under his contract of employment. But as the plaintiff has not appealed the defendant cannot complain that the jury did not give a verdict against him sufficiently large. The Court of Common Pleas in Rowe v. Comley, supra, said in regard to such a finding, "If the General Term of the Marine" (now City) "Court had seen fit to set aside the verdict upon the ground that it was the result of a compromise, they would have had the power so to do in the exercise of their discretion; but this court can only consider upon appeal the exceptions taken during the trial." The judgment must be affirmed, with costs. DALY, P. J., and BISCHOFF, J., concur. JAMES G. TIMOLAT, Respondent, v. THE S. J. HELD Co., Appellant. THE OAKLAND CHEMICAL Co., Respondent, v. THE S. J. HELD Co., Appellant. (Supreme Court, Appellate Term, July, 1896.) Service Corporations Resignation of director. Where the by-laws of a corporation provide that its directors shall serve until their successors are chosen, service upon a director who has resigned, but whose successor has not been chosen, is binding upon the corporation. An order of the City Court granting or denying a motion to set aside the service of a summons is a discretionary one, and is not appealable to the Appellate Term of the Supreme Court. APPEAL by defendant in both actions from the affirmance, by the General Term of the City Court, of orders of the Special Term denying defendant's motions to vacate and set aside the service of Misc.] Supreme Court, July, 1896. the summons and complaint upon S. J. Held, upon the ground that at the time of service he was not a director, nor an officer of the corporation defendant. Isaac Fromme and H. B. Wisselman, for appellant. Waiter R. Beach, for respondent. DALY, P. J. The summons and complaint were served on November 5, 1895, upon S. J. Held, as director, secretary and treasurer of the company, but defendant claims that he resigned those offices on October 15, 1895. The by-laws of the company provide that the board of directors shall be three, who shall be elected annually on July 16, and shall serve for one year " and until such time as successors are chosen," and that any vacancy in the board, or among the officers of the company, caused by death, resignation, or otherwise, shall be filled by the remaining directors for the balance of the year and until the next annual election. It is undisputed that no successor was chosen for S. J. Held, as director, secretary or treasurer, when his resignation was received, and he was, therefore, under the by-laws, serving as such director at the time of the receipt of the summons and complaint by him and service of the papers upon him was regular. There is no question here of the personal liability of the resigning director to the creditors of the company, but only a question between such creditors and the company, under its own by-laws, and for its own neglect to terminate its official relations with the director by electing his successor. When, by its by-law, it declares that he shall serve until his successor is chosen, it constitutes him its officer until that event with the same effect, so far as the corporation is concerned, as if he were serving in the term for which he was elected and had not resigned. It was in the power of the company to terminate his agency at any time by electing a successor, and if it chose rather to continue such agency he must be treated, in actions against the company, as its duly constituted officer. A by-law of a corporation has all the force of a statute, and is as binding upon the company and its members as any public law of the state. Thompson on Corp. 939; Kent v. Quicksilver M. Co., 78 N. Y. 159-79; Brick Pres. Ch. v. Mayor, 5 Cow. 538. Where a public statute declared that certain town officers should hold their offices for one year and until their successors were elected and [Vol. 17. Supreme Court, July, 1896. qualified, it was held that process was regularly served upon such officers who had previously resigned and for whom no successors had been chosen. Badger v. U. S., 93 U. S. 599. Service upon S. J. Held was, therefore, regular. He was a director by virtue of the law of the company notwithstanding his resignation, as his successor had not been chosen, and service upon a director was service upon the corporation. Code, § 431. The objection of respondent that the order is not appealable to the Appellate Term is well taken. Had judgment been entered upon such service and a motion made thereafter to vacate it for want of service upon the corporation, we should not have reviewed the determination of the City Court upon such motion; for it is in the discretion of the court to vacate, upon motion, a judgment regularly entered. Jackson v. Brunor, 17 Misc. Rep. 339. It rests equally within the discretion of the trial court to entertain a motion to vacate the service of summons. If the service were not made upon an officer of the corporation as directed by the Code, the judgment would not bind the corporation, and whenever its enforcement were attempted the want of jurisdiction could be shown. In this case the service was regular, but if it were not, the order would not be appealable. The case of Wilson v. Brentwood Hotel Co., 16 Misc. Rep. 48, in which we reviewed a judgment entered upon alleged irregular service, was an appeal from a District Court, and with such judgments we have the power of the former General Terms. In appeals from the City Court our jurisdiction is similar to that of the Court of Appeals, and we cannot review the discretion exercised in making the order appealed from. Appeal dismissed, with costs and disbursements. MCADAM and BISCHOFF, JJ., concur. Appeal dismissed, with costs and disbursements. Misc.] Supreme Court, July, 1896. LIZZIE LAWRENCE, Appellant, v. LEVI SAMUELS, Respondent. (Supreme Court, Appellate Term, July, 1896.) Negligence Physical examination of plaintiff. A female plaintiff is entitled as of right to have inserted in an order for her physical examination before trial a provision that a female physician make the examination, without making any special application for it as a favor or privilege. APPEAL by plaintiff from affirmance by the General Term of the City Court of an order made at Special Term, denying a motion to vacate an order for the physical and oral examination of the plaintiff. Fromme Brothers, for appellant. Nadal, Smyth, Carrere & Trafford, for respondent. MCADAM, J. The action was to recover damages for personal injuries of a permanent character alleged to have been sustained, July 9, 1895, by falling down the rear stairway of a tenement-house owned by the defendant, charged to have been kept by him in an unsafe and dangerous condition. Upon an affidavit, made by the defendant, showing the facts required to be stated by sections 872 and 873 of the Code, he obtained an order for the examination of the plaintiff as a witness before trial, and directing that she submit to a physical examination by a physician designated therein. The plaintiff thereafter obtained an order to show cause why the order for such examinations should not be vacated; the application was after argument denied, and the order for the examinations sustained. The affidavit upon which the defendant's order was granted appears to contain all the facts necessary to be stated to entitle him. to the relief claimed. Lyon v. Manhattan Ry. Co., 142 N. Y. 298. If any technical defects exist they ought to have been specially called to our attention by the appellant and not left for us to seek. The criticisms made by the appellant against the affidavit in his points are general, and appear to be without merit. In the order to show cause why the order for examination should not be vacated no irregularities are specified, nor are any defects pointed out; it |