KNEELAND S. TOWNSEND, Administrator, etc., Respondent, v. CHARLES O'CONNOR, Impleaded, etc., Appellant.

(Argued April 15, 1878; decided April 23, 1878.)

DISPOSED of on the facts; the court holding that a mere question of fact, determined below, upon conflicting evidence was involved, which was not reviewable here.

Samuel Hand for appellant.

William R. Martin for respondent.

EARL, J., reads for affirmance.

All concur.

Judgment affirmed.

IN THE MATTER OF THE PETITION OF THE NEW YORK PROTESTANT EPISCOPAL PUBLIC SCHOOL TO VACATE ASSESSMENTS.

ROBERT RIDELL, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

(Argued April 17, 1878; decided April 23, 1878.)

THIS was an action to recover the value of a canal-boat alleged to have been destroyed by fire through the negligence of defendant.

The complaint alleged that plaintiff was the owner of the boat. It appeared that he was in possession at the time of the fire under a contract of purchase, by which a bill of sale was to be executed to him by the vendor, upon payment of the purchase-money as specified in the contract, for which purchase-money plaintiff had given his notes. Plaintiff had expended money in repairing the boat. Upon the trial plaintiff gave in evidence an assignment to him from the owner of all claims against defendant growing out of the fire. This was objected to, but not on the ground of any defect in the complaint. Defendant moved for a nonsuit upon the ground among others that plaintiff was not the owner of the boat, and did not have such an interest in it as entitled him to maintain the action. The motion was denied. Held, no error; that even if plaintiff did not have such an interest at the time of the fire, the subsequent assignment transferred to him the claim of the owner, and the assignment not having been objected to on the ground of a defect in the complaint, in that plaintiff had not brought this action thereon, but only as owner, the complaint must be considered sufficient here; also, that at the time of the fire plaintiff had an interest which would entitle him to recover some damages, and therefore the motion was.properly denied.

Other questions were disposed of upon the facts in the case.

William H. Adams for appellant.

H. V. Howland for respondent.

EARL, J., reads for affirmance.

All concur.

Judgment affirmed.

RICHARD M. HOE et al., Respondents, v. CURTIS G. HusSEY et al., Appellants.

(Argued April 18, 1878; decided April 26, 1878.)

Samuel Hand for appellants.

Eugene Smith for respondents.

Agreed to affirm. No opinion.

All concur.

Judgment affirmed.

GEORGE H. MAYBURY, Respondent, v. THE HOMER AND

CORTLAND GAS LIGHT COMPANY, Appellant.

(Argued April 19, 1878; decided April 26, 1878.)

M. M. Waters for appellant.

Samuel Hand for respondent.

Agreed to affirm. No opinion.

All concur.

Judgment affirmed.

JOSEPH AGATE, Appellant, v. SAMUEL S. SANDS, Survivor, etc., Respondent.

It seems that a loan of money to a manufacturing corporation by one of its stockholders, in the absence of evidence to the contrary, justifies an inference that the money was applied to the payment of the obligations of the corporation in the usual course of business.

In an action therefore, by a creditor of the corporation against a stockholder, to enforce the liability imposed by the general manufacturing act (§ 10, chap. 40, Laws of 1848) upon a stockholder who has not paid for his stock, evidence of a loan by defendant to the corporation to an amount equal to his stock constitutes a defense.

The fact that security was taken for the loan is immaterial.

(Argued April 17, 1878; decided May 21, 1878.)

THIS action was brought under the general manufacturing act originally against the members of a firm, of whom defendant Sands is survivor, to recover of them as stockholders n a manufacturing corporation, a debt of the corporation, because of their omission to pay in the amount of capital stock subscribed by them. Defendants set up as a defense, and proved that they had discounted a promissory note made by the corporation for more than the amount of the subscription for stock; had recovered a judgment thereon and execution had been returned unsatisfied. It appeared on the trial that one of the indorsers upon the note, after it became due, gave to defendants a new note, with another indorser and with certain stock as collateral, receiving a receipt stating that upon the payment of the note the collaterals would be surrendered. It was claimed by plaintiff's counsel that an advance of money without proof that it was used for the payment of debts of the corporation would not exonerate defendants. The opinion states the rule as above but holds that as the point was not raised below it was not necessary to determine it.

Other questions as to the rejection of evidence were disposed of upon the ground that the exceptions were not suf ficient to present them.

C. Bainbridge Smith for appellant.

Albert Matthews for respondent.

MILLER, J., reads for affirmance

All concur.

Judgment affirmed.

JOHN OUSBY, Respondent, v. EDMUND G. JONES, Appellant.

Where the closing clause in the description in a deed sums up the intention of the parties as to the particular premises conveyed it has a controlling effect upon all the prior phrases used in the description.

(Argued April 17, 1878; decided May 21, 1878.)

THIS was an action of ejectment. Both parties claimed under a common source of title, i. e., from one Gardner, and the question was as to the south bounds of the land formerly owned by Gardner. By the deed to him the south boundary of the land conveyed is designated as "land now or lately in the possession of Schuyler King." The description in the deed closed as follows: "The premises hereby intended to be conveyed being the east half part of the farm whereon Johnson Babcock, now deceased, formerly lived, in the town of Tully." The deed to said Babcock gave the south boundary as a line 160 rods from the north line of lot number 50 in Tully." This was the line as claimed by plaintiff. Held, that the last clause in the description must control, and that the intent was to convey simply the east half of the Johnson Babcock farm. The court further held that the facts did not show such an adverse possession in said Babcock, or such a practical location as changed the boundary line as given by his deed.

Wm. C. Ruger and Wm. C. Goodelle for appellant.