and 140 New York State Reporter WILLIAMS, J. The judgment should be affirmed, with costs. The action was brought for relief in the nature of specific performance of a contract made by the Standard Railroad Signal Company, a New Jersey corporation, with the plaintiff's assignor, a New York corporation. There seems to be no controversy here as to the facts. The making of the contract, the liability of the New Jersey corporation to perform the same, and the plaintiff's interest therein are not disputed. The question involved is whether the relief sought can be obtained in this action; the only parties defendant being the directors of the New Jersey corporation, who, since the dissolution of the corporation, are claimed to be the trustees thereof, and as such to represent the same, for the purposes of such an action as this. The relief granted by the trial court was that these defendants, as such trustees, carry out the terms of the contract. The New Jersey corporation was organized March 26, 1896, and was thereafter engaged in the manufacture and sale of railroad signaling and interlocking devices, at Rahway, N. J. August 5, 1901, another corporation, the Standard Signal Company, was organized in the state of New York for the same purposes as the New Jersey corporation, and to take over the business, property, and assets of the former corporation. Its principal office was in Troy, N. Y. Its capital stock was $300,000, and the defendants were its incorporators and directors, and were also the directors of the New Jersey corporation. Immediately after the organization of the New York corporation the contract in question here was made between the two companies whereby, in brief, the New Jersey corporation agreed to sell and deliver all its business, property, and assets to the New York corporation for the consideration of the shares of stock of the new corporation of the par value of $300,000, and to execute and deliver all necessary deeds and assignments of such property and assets. The contract covered a large number of valuable patents, and licenses under other patents, and claims and rights of action for infringements. The New York corporation, in performance of the contract, delivered the capital stock in payment of the consideration for the sale and transfer of the business, property, and assets of the New Jersey corporation. The New Jersey corporation, in performance of the contract, delivered to the New York corporation a deed of all the real property, and turned over all its personal property, and all letters patent and licenses under patents, but through inadvertence neglected to execute or deliver any instruments in writing transferring the patents and licenses and claims for infringements, as required by section 4898, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3387]. All rights of the New York corporation in the contract and its performance have been duly transferred to and are now owned by the plaintiff. Soon after the making of the contract proceedings were commenced in New Jersey for the voluntary dissolution of the corporation in that state, resulting October 29, 1901, under the statute, in its dissolution. The statutes of New Jersey provide by section 59 (Gen. St. N. J. p. 918), in brief, that dissolved corporations "shall be continued bodies corporate, for the purpose of prosecuting and defending suits by or against them, and of enabling them to settle and close their affairs, to dispose of and convey their property, and to divide their capital, but not for the purpose of continuing the business for which they were established," and by section 57, in brief, that upon the dissolution of a corporation "the directors shall be trustees thereof, with full power to settle the affairs and sell and convey the property," of the corporation, and by section 58, in brief, that "the directors constituted trustees * * * shall be suable by the [corporate] name, or in their own names or individual capacities, for the debts owing by the corporation, and shall be jointly and severally responsible for such debts, to the amount of the moneys and property of the corporation which shall come to their hands or possession as such trustees." The trial court held, in view of these statutes, that the directors, as such trustees, were "clothed with full power to settle up and adjust the affairs of said corporation, and to do any acts needful and necessary for such corporation to do, and to carry out and perform all agreements and engagements made by said corporation," and therefore that the present action could be maintained against them without the presence of the dissolved corporation as a party defendant. In this we think the trial court was entirely correct. While the action might have been brought against the corporation, or it might properly have been made a party defendant herein under section 59, yet it would in this case be a mere nominal difference. These defendants were the directors, and some of the defendants were the officers, upon whom the process must have been served and who would necessarily have had charge of the defense of the action, and ample power to represent and bind the corporation in such a matter as this was given by sections 57 and 59. They were given power to settle the affairs of the corporation and to convey its property, and were made suable in the corporate name, or their own names, for the debts (which may well include the obligations) of the corporation. Here was a contract under which the corporation was obligated, not to pay money, but to transfer and convey property. They were given power to convey property. Why might they not be sued, to enforce such conveyance, where the full purchase price has been paid, as well as where the obligation was to pay money, instead of to deliver conveyance of property? This principle was stated in Beale on Foreign Corporations, § 826; Thompson's Commentaries on Law of Corporations, §§ 6739, 6751; Clarke & Marshall on Private Corporations, § 333d; Sturges v. Vanderbilt, 73 N. Y. 381; People v. O'Brien, 111 N. Y. 1, 56, 18 Ν. Ε. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684; Marstaller v. Mills, 143 N. Y. 398, 38 Ν. Ε. 370. The cases cited by appellants are not so far in point as to change this rule. We do not regard it as necessary to quote from these textbooks and cases, or to comment upon or analyze them. A reading of them will clearly indicate that the trial court correctly determined the questions here involved. We think the discretion of the court was fairly exercised in charging the appellants with costs. They have been clearly defending the case, not upon the merits, but upon mere technicalities. The relief granted should have been permitted without this protracted litigation. The case was also one fairly within the rule permitting an extra allowance. Judgment affirmed, with costs. All concur. and 140 New York State Reporter GORGE HOTEL CO. v. LIVERPOOL & LONDON & GLOBE INS. CO. (Supreme Court, Appellate Division, Fourth Department. November 13, 1907.) INSURANCE-CANCELLATION-SURRENDER OF POLICY - RETURN OF UNEARNED PREMIUM-WAIVER. Where the insurance agent notified the owner of insured property that the policies were canceled because of mortgage foreclosure proceedings, and that the insurer's liability would cease at a certain time unless the policies were sooner surrendered, and that the mortgagee had returned the policies held by him, and stated that on return of policies unearned premiums would be returned, and the insured then returned the policies held by him, there was an unconditional surrender, with waiver of right to have the policies remain in force till repayment to insured of the unearned portion of the premium. [Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 519.] Appeal from Trial Term, Erie County. Action by the Gorge Hotel Company against the Liverpool & London & Globe Insurance Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial granted. This action is brought to recover the amount of a fire insurance policy, origInally issued to the plaintiff's predecessor in interest on the 6th day of April, 1904, whereby the defendant agreed for the term of one year to pay to the Insured for all loss or damage caused by fire, to the amount of $1,200, upon a certain building known as the "Gorge Hotel," located upon the banks of the Niagara river in the town of Lewiston, Niagara county, in this state. The policy contained the usual mortgage clause, making the loss payable to the mortgagee therein named as his interest might appear. The plaintiff became the owner of the property on the 2d of May, 1904, and at its request the defendant made the policy payable to the plaintiff as owner, continuing the mortgage clause. The plaintiff also acquired by assignment all the rights of the mortgagee under the policy of insurance. There were several policies of insurance upon the same building, issued by different insurance companies, but through the same insurance agents, and still others issued through the same agents upon the furniture and property other than the building. The total amount of premium upon all the policies issued by the agents was $137.50, upon which had been paid and credited generally the sum of $100 before the date of cancellation. In November, 1904, foreclosure proceedings were begun on the hotel property, and on the 11th day of November, 1904, the local agents issuing the policy in question indorsed upon the policy a statement that mortgage foreclosure proceedings had begun on the property. Thereupon the insurance companies directed the cancellation of all the policies, and the local agents to whom the policies were issued gave notice accordingly to the owner and mortgagee. Such notice of the cancellation of the policy in question was sent on the 6th day of December, 1904, stating that the liability of the defendant would cease at noon of December 11, 1904, unless the surrender of the policy to the company was sooner made. A similar notice was sent at the same time on behalf of all the other companies, canceling their respective policies at the time set, except, as regards one of the companies, the notice was sent on the 1st of December, 1904. The policy in question was held by the legal representatives of the mortgagee, or their successors in interest (the mortgagee himself having died prior thereto), at the time of the notice of cancellation, and the policy was canceled and forwarded by them to the insurance company at some time prior to the 20th or 21st of December, 1904, as is claimed on behalf of the defendant. On the 11th day of January, 1905, the property covered by the policy was totally destroyed by fire. Concededly there was a small general balance due the plaintiff for unearned premium on December 11, 1904. On the 10th of January, 1905, the local agents wrote a letter to the plaintiff, stating that they had obtained all of the policies, and inclosed a statement showing earned and returned premiums under the same, inclosing a check for $4.37 as the balance due the plaintiff, which the local agents conceded upon the trial was a little short of the amount actually due the plaintiff; the amount as claimed by them to be due to the plaintiff being $6.39, while the plaintiff claimed it to be a trifle more than that amount. The check was not received by the plaintiff until after the fire, and was immediately returned to the local agents, being received by them a few days later. The policy was the standard fire insurance policy of this state. At the close of the evidence both parties moved for a direction of a verdict. The trial court held that the policy was still in force at the time of the fire, and directed a verdict in favor of the plaintiff for the amount of the policy. The defendant excepted thereto, and made a motion for a new trial upon the minutes, which was denied. From the order denying the motion for a new trial, and the judgment entered upon the verdict so directed, the defendant appeals to this court. Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ. Horace McGuire, for appellant. William L. Marcy, for respondent. KRUSE, J. The sole question presented upon this appeal is whether the policy in question was unconditionally surrendered to the defendant by the plaintiff, or by its authority, pursuant to the notice of cancellation, thus waiving the plaintiff's right to have the policy remain in force until the company actually paid to the plaintiff the unearned portion of the premium theretofore paid by the insured. We think the evidence conclusively established that there was such a waiver, and that the policy was voluntarily and absolutely surrendered. In Buckley v. Citizens' Insurance Company, 188 N. Y. 399, 81 Ν. Ε. 165, after distinguishing the cases of Nitsch v. American Central Insurance Company, 152 N. Y. 635, 46 N. E. 1149, and Tisdell v. New Hampshire Fire Insurance Company, 155 N. Y. 163, 49 Ν. Ε. 664, 40 L. R. A. 765, by the fact that the plaintiff had voluntarily and unconditionally surrendered his policy immediately upon receiving notice of cancellation, and holding that such action on the part of the insured was a waiver of his right to treat the policy as in full force until the company paid or tendered to him the unearned premium, the court say: "The one object of the cancellation clause is to place the policy in the custody of the insurance company absolutely and unconditionally. If the insured permits this to be done by his voluntary act, when the company gives notice of cancellation, without receiving from it the unearned premium, he assents to the cancellation, but can sue for the amount due him." Upon the trial of the case at bar James F. Murphy, the local insurance agent whose agency issued the policy to the insured, was sworn as a witness on behalf of the defendant, and testified to conversations (which will be presently referred to) which he had with Allison K. Hume, the treasurer of the plaintiff corporation. Hume, although sworn as a witness for the plaintiff, did not deny that the conversation was had between them as testified to by Murphy, nor is there any evidence which contradicts Murphy's testimony in that regard. After sending out the cancellation notices, and on the 7th or 8th of December, 1904, Hume called up on the telephone and wanted to know what and 140 New York State Reporter the matter was with the policies being canceled, so Murphy testified. Murphy informed him that it was on account of the notice of foreclosure having been received by the companies, and that they did not like the conditions. Hume wanted to know if Murphy could not get any insurance for him in any of the other companies in his agency, or from any outside source, to which Murphy replied that he could not. The policy in question was one of the policies payable to Chauncey W. Babcock as mortgagee, and are referred to as the "Babcock policies." Mr. Babcock having died, these policies before the date of the notice of cancellation came into the possession of Mr. Ives, Babcock's executor, or of his attorneys. Murphy received the Babcock policies from Ives, including the policy in suit, and the same were canceled on the books of the company about December 20th, although Murphy did not recall the date. On December 20, 1904, Murphy wrote to Hume, asking him to return two canceled policies, as it was necessary to return the same in order to obtain the return premium due. Murphy testified that the day he received a letter from Hume, dated the 20th or 21st of December, 1904, Hume called him up on the telephone and wanted to know what had been done, how Murphy had received notice of the foreclosure of the mortgage, to which Murphy replied that he had received it from Ives or his attorneys, but that he was very sure it was from Mr. Ives himself, by bringing the policies in to have the notice put on them. Murphy, continuing, testified: "I asked him if he would hurry up the policies to me, as I would like to get the matter out of the road, and that just as soon as I received the last of the policies I would send him statement that he had asked me for and a check for the return premium, if there was anything coming to him; that there was only a few cents between us anyway, and whatever it was I would straighten it up as soon as I received the last of the policies; and he said he would hustle them along, or hurry them along. Mr. Shapley's name was mentioned over the phone. Mr. Hume asked me if I knew whether the mortgagee had been able to secure any insurance, and I told him that a man from Shapley's office had been down looking at the place, but I understood they were unable to insure it. The man I referred to was a Mr. Wright. He had been in to see me. Mr. Hume did not refer to any particular mortgagee. Our conversation was in relation to the mortgagee, Mr. Ives. I told him I had received the Babcock policies, and had sent them back to the companies for cancellation. He said nothing to that." On December 28, 1904, Hume wrote a letter to J. F. Murphy Company, the local agents, inclosing the Hartford and Westchester policies, inquiring what notice they had received regarding the foreclosure, and asking for a memorandum of canceled policies. On January 6, 1905, the plaintiff, by Hume as treasurer, wrote to the local insurance agents, referring to the fact that a statement covering canceled insurance had been asked for, and also asking him to advise "who and how formal notice was given you or the companies in regard to the foreclosure which was started against the Gorge Hotel Company," saying further: "We take it that the policies held by the Babcock estate have been returned to you, or you would have said something to us about it. * * To that letter J. F. Murphy Company, the local agents, replied on January 10th, saying that formal notice was given them of mortgage |