liability of the defendants for the fallure to file a report is brought within the statute.

It is also urged that, although by the terms of the certificate for formation of the corporation its term of duration was made two years, the presumption arose from the fact that a report was made and filed January 21, 1886, that its life was extended, which could have been done pursuant to the statute which provides that: "Whenever any corporation organized under this act has fixed the duration of its corporate existence for a less period than 50 years, it may at any time extend the term of its existence beyond the time mentioned in the original certificate of incorporation, by the consent of the stockholders owning two thirds in amount of the capital stock of the corporation, in and by a certificate to be signed by such stockholders," duly acknowledgd or proved and filed in the office of the secretary of state. Laws 1875, c. 611, § 29.

While it may be difficult to account for the filing of the report in 1886, otherwise than upon the assumption by the officers making it that the corporation was then in existence, the fact that the report was then made did not, as matter of law, raise the presumption that the requisite or any proceedings for that purpose had been taken to extend its life; nor does it appear by the record that such question was specifically raised by any request to find or otherwise by any exception. And the same may be said of the suggestion of estoppel in support of the defendants' liability. No question in the record arises upon either of those propositions, to justify, on this review, interference with the conclusion of the court below. It follows that the judgment must be affirmed.

concur.

All

PEOPLE V. FISHBOUGH. (Court of Appeals of New York, Second Division. Oct. 1, 1892.)

as

"

GAME LAWS-SALE OF LIVE BIRDS. Under Laws 1879, c. 534, § 12, amended by Laws 1880, c. 584, § 2, providing that no person shall "kill or expose for sale, or have in possession after the same is killed,' certain specified birds, "under a penalty of five dollars for each bird so killed, exposed for sale, or had in possession," a person is not liable for having live birds in her possession and exposing them for sale. Vann and Brown, JJ., dissenting. 12 N. Y. Supp. 24, reversed.

Appeal from supreme court, general term, second department.

Action by the people of New York against Emma Fishbough to recover a penalty for having live birds in her possession and exposing them for sale, in violation, as claimed, of the statute. From a judgment of the general term, (12 N. Y. Supp. 24,) affirming a judgment entered upon a decision of the trial court in favor of plaintiff, defendant appeals. Reversed. Josiah T. Marean, for appellant. Thomas W. Fitzgerald, for respondent.

BRADLEY, J. The action was brought to recover penalties for alleged violation of the statute, which provides that "no person shall at any time in this state kill

or expose for sale, or have in possession after the same is killed, any eagle, woodpecker, night hawk, yellowbird, wren, martin, oriole, or any song bird, under a penalty of five dollars for each bird so killed, exposed for sale, or had in possession. Laws 1879, c. 534, § 12, as amended by Laws 1880, c. 584, § 2. The defendant in May, 1889, kept a bird'store in the city of Brooklyn, and then had in her possession and exposed for sale 17 live yellow birds. This was charged to be in violation of such statute, and the determination to that effect resulted in a recovery of $85 against the defendant.

The question is one of construction of the statute, and for that purpose reference may be had to the object in view, which was to prevent the destruction of the birds there mentioned. The prohibition, therefore, was directed to the killing of them, and, to make it effectual in that respect, was applied in like manner to the having them in possession after they were killed. It so far had relation only to the killing of birds and the possession of them after they were killed, and, although a person by having the possession of live birds does not violate the statute, it is said that if he exposes them for sale he does violate it as effectually as if he should kill them, or have them in his possession after they were killed, because perchance the purchaser who would violate no law in buying might kill them. Is there any reason why the purchaser's possession of live birds would be more objectionable than that of the person from whom he should purchase them? If there is, and the sale is within the intended interdiction, why was not the purchase as well as the sale within the statutory condemnation, and the purchaser as well as the seller in like manner subjected to the penalty? Inasmuch as the statute does not prohibit the having possession of the live birds, the reason is not apparent for the legislative intent to discriminate in that respect between the person who should sell and the person who should obtain from him the possession by purchase. It is, however, suggested that by putting live birds in the market they might come to the possession of a purchaser who, for some lucrative purpose, would kill them. This is upon the assumption that they might be purchased for some sort of ornamentation, and for that purpose be killed. While such may or may not be the purpose of the sale and purchase, the act of the purchaser in buying would be no less within the reason for penal statutory imputation than would that of the seller. We have thus far proceeded with a view to the inquiry whether the legislative intent was such as to bring the charge made against the defendant within the statute, and think it was not, unless the language employed fairly requires construction to that effect, and that the charge against her cannot for support rest upon doubtful interpretation. While the statute may perhaps have been made to express more clearly than it did the purpose in its bearing upon a charge of the character of that made in the present case, we think the fair import of it is such that the prohibited

mark. The land below the low-water mark was at some time, the date not ap. pearing, acquired by the plaintiff from the state of New York; but from whom or when he acquired the land above the lowwater mark does not appear, nor is it material, for it is conceded that in 1866 plaintiff owned the entire block or lot. In 1865 plaintiff constructed a pier midway between Twenty-Third and TwentyFourth streets, 30 feet wide, and extending northwesterly to the east line of First avenue, if prolonged from the north shore to Twenty-Fourth street. It is 85 feet from the north side of this pier to the north line of the plaintiff's lot, and it is the same distance from the south side of the pier to the south boundary of this lot. This lot of land, bounded by these streets and avenues, partly below and partly above low-water mark, as above described, was in 1886 known on the assessment map of the Eighth ward of the city of Brooklyn as "Block 33." In that year the board of assessors of that eity valued this block or lot at $15,000, and levied a tax thereon of $409.54, which the plaintiff refused to pay, and the defendant advertised that it would sell the block on the 6th of June, 1888, for the nonpayment of taxes. In May of that year this action was begun to restrain the sale, on the ground that the portions of this block below low-water mark, on the north and south sides of the pier, were not within the city of Brooklyn. The plaintiff concedes that the part of the block above low-water mark and the pier are within the city, and subject to assessment therein. Whether lands and piers beyond the natural low-water mark of the shores of the city of Brooklyn are within or without the boundaries of the city has been considered in several cases. Udall v. Brooklyn, 19 Johns. 175, was an action to recover a penalty for measuring grain for hire within the then village of Brooklyn, in violation of the ordinances. It was conceded that defendant was a licensed measurer in the city of New York. A pier had been constructed from the shore of Long island westward beyond low-water mark, on the end of which the measuring was done. The defense was that the act complained of was committed beyond the limits of Kings county, which was bounded by low-water mark. The court said, in deciding the case: "We are of the opinion that Kings county includes all the wharves and made land on the Long Island shore of the East river, as well as natural alluvion to the actual line of low water." Luke v. Brooklyn. 43 Barb. 54, was an action to recover the value of a building destroyed during the draft riots of July, 1863. The property was on the end of a pier beyond low-water mark. The court held that "the jurisdiction of the city of Brooklyn must, from necessity, follow the shore as it advances into the river or bay, whether the accretion proeeeds from alluvion or artificial deposits and erections." This case was affirmed by the court of appeals in June, 1865. Dock Co. v. Brooklyn, 1 Abb. Dec. 24, *42 N. Y. 445, and 3 Trans. App. 305, was an action to recover damages for the destruc

tion of a pier and a dredging machine floating in a basin formed in part by the pier. The pier extended below low-water mark, and the machine was floating near the end of the pier. It was held: "It has been repeatedly adjudged that the boundary of territorial jurisdiction between the counties of New York and Kings is the actual line of low water on the Brooklyn side, whether corresponding with the original low-water line on the East river shore, or varied by the permanent encroachment of docks, piers, and wharves.

or

other artificial erections, for the purposes of general commerce.' The same rule was held in Orr v. Brooklyn, 36 N. Y. 661. Under these decisions, it cannot be doubted that the pier was within the jurisdiction of the defendant's assessors. Since the cases cited were decided, the boundaries of the city of Brooklyn have been somewhat changed, and it is asserted that they now extend below low-water mark. This question we do not consider it necessary to determine upon this appeal. May 11, 1886, art. 1, tit. 2, c. 13, pt. 1, Rev. St., was amended by adding thereto section 4, which then read as follows: "Sec. 4. When the line between two towns, wards, or counties divides a farm or lot, the same shall be taxed, if occupied, in the town, ward, or County where the occupant resides; if unoccupied, each part shall be assessed in the town, ward, village, or county where the same shall lie." This section laid down a rule for the assessment of lots in cities divided by the lines between wards or counties, as well as for farms divided by the boundary lines of towns. Assuming this lot was, as the plaintiff contends, partly within the city of Brooklyn, and partly within the city of New York, the case falls with the statute, and the assessment was legal, and the judgment should be affirmed, with costs. All concur.

1. Plaintiff alleged that defendant agreed as agent to purchase for him a number of shares in a mining company. The first count of his complaint sought a recovery of the purchase price of the stock, based on a rescission of the contract, because of a fraudulent performance thereof by defendant. The second count was based on an affirmance of the contract, and sought to recover damages sustained by reason of the false representations as to the value of the stock. Evidence was given in support of both counts, and the court submitted to the

jury the action embraced in the second, and refused to submit the first count. Held that. though the two causes of action were inconsistent, and but one could have been submitted to the jury, plaintiff had the right to elect on which count he would stand.

2. Plaintiff ordered defendant, as a broker, to buy for him a number of shares in a mining company, and the shares were delivered to him by defendant. Afterwards the property of the company was bought by another company, and the stock of the former made convertible into stock of the latter, and plaintiff had his stock 80 converted. Subsequently plaintiff discovered

that defendant did not buy the shares for him, but only turned over some which he himself owned, and thereupon plaintiff sought to rescind the purchase, and for that purpose borrowed the requisite number of shares in the original company, and tendered them to defendant. Held, that the tender was good, since, the shares being of like value, plaintiff was not bound to return the same shares he received, and, having borrowed them for that purpose, had the right to transfer title to defendant, thus restoring him to all the rights parted with. 10 N. Y. Supp. 230, reversed.

Appeal from common pleas of New York city and county, general term.

Action by Sylvanus Mayo against Deforme Knowlton. Defendant had judgment, which was affirmed at general term, (10 N. Y. Supp. 230,) and plaintiff appeals. Reversed.

Charles N. Morgan, for appellant. John R. Tresidder, for respondent.

HAIGHT, J. The complaint alleges two causes of action. The first allegation is, in substance, that at various times between the 1st day of June and the 1st day of September, 1882, the defendant agreed to purchase for the plaintiff, as his agent, 4,000 shares of the stock of the Silver King Mining Company; that in pretended fulfillment of such agreement, and with the intent to deceive and defraud the plaintiff, the defendant caused to be transferred to the plaintiff the stock of the company belonging to himself, and received and retained to his own use the money paid therefor; that in the month of June, 1886, the plaintiff first became informed of the facts, and thereupon tendered to the defendant the stock received from him, and demanded the return of the money paid. The second cause of action, in substance, alleges that the plaintiff purchased of the defendant the stock in question, and that, in order to induce such purchase, the defendant falsely and fraudulently represented the stock to be of a value largely in excess of the sum paid per share, and that a dividend of 10 per cent. had been declared thereon, and demanded the damnages sustained by reason of such false and fraudulent representations. Upon the trial, evidence was given in support of both causes of action. At the conclusion of the evidence the court submitted to the jury the question of fraudulent representations embraced in the second cause of action alleged in the complaint, after which the plaintiff asked to have the first cause of action alleged submitted to the jury, and, upon the refusal of the court, took an exception thereto. The jury found for the defendant, and the judgment entered upon such verdict has been affirmed by the general term upon the ground that the evidence did not establish a rescission of the contract by the plaintiff by reason of his failure to tender to the defendant the stock received from him.

The first cause of action alleged in the complaint is based upon a rescission of the contract by reason of the fraudulent performance thereof, and is to recover the purchase price of the stock; while the second cause of action is based upon an affirmance of the contract by a retention of the stock, and is to recover the dam

ages sustained by the plaintiff by reason of the false representations made by the defendant in reference to its value, etc. The two claims are based upon conflicting or inconsistent theories, and the plaintiff was not entitled to recover upon both. Six of the jurors might find in his favor upon the first, and against him on the latter, while the other six jurors might find in his favor upon the first and against him upon the former. If entitled to recover back the purchase price of the stock, he would not be entitled to recover for the damages sustained by reason of its being of less value than that which he paid for it. If he was entitled to recover damages for the false representations made in reference to its value, etc., he would not be entitled to recover the purchase price. So that he did not have the right to have both causes of action submitted to the jury. The court might properly have required him to elect as to which one he would have submitted, but, instead of doing this, the court saw fit to submit the second, and refused to submit the first; thus electing for him. This the court should not have done.

If, as is claimed, the defendant agreed to purchase for the plaintiff, as his agent, 4,000 shares of the stock of the Silver King Mining Company, and in the pretended fulfillment of such agreement, and with the intent to deceive and defraud the plaintiff, the defendant caused to be transferred to him the stock of the company belonging to himself, and received and retained to his own use the money paid therefor, the plaintiff, upon the discovery of the fraud, had the right to rescind the contract, because of its fraudulent performance, and recover back the purchase price paid. Taussig v. Hart, 58 N. Y. 425; Conkey v. Bond, 36 N. Y. 427. We are thus brought to the question as to whether there is evidence that the plaintiff rescinded. It appears from his testimony that in the latter part of the year 1882 the property and assets of the Silver King Mining Company were conveyed to the Silver King Mining & Tunnel Company, and by agreement the stock of the former company was convertible into the stock of the latter company; that the plaintiff had procured his stock to be so converted; that, upon the discovery of the fraud practiced upon him, he borrowed 4,000 shares of the stock of the Silver King Mining Company, which had not as yet been so converted, and tendered the same to the defendant, and demanded the repayment to him of the purchase price, with the interest that had accrued thereon; that the stock so borrowed by the plaintiff was borrowed for the purpose of making the tender to the defendant. Undoubtedly, when the purchaser of personal property capable of identification and description has sold and parted with the same before the discovery of fraud practiced upon him in the purchase, he will be left to an action for damages. Having parted with the property, he can no longer rescind by tendering back that which he had received. But the stock had no earmark. One share was the same as another, and could not be identified or distinguished therefrom. Each share repre

sented an equal interest in the property and assets of the corporation; so that, if the defendant had accepted the 4,000 shares of the stock tendered to him, he would have had the same interest in the property and assets of the company as that sold by him to the plaintiff. Horton v. Morgan, 19 N. Y. 170-173. True, a new company had been organized, and the assets of the old had been transferred to the new company. The plaintiff had converted his old stock into the stock of the new company, but it is not seen how this should deprive him of his right to rescind, provided he is able to do so. He found stock of the old company which had not as yet been converted, and borrowed it for the purpose of making the tender. Having borrowed it for that purpose, he had the right to transfer it to the defendant, and give him a good title thereto, thus restoring him to all the rights and property parted with. We fail to see any reason why this may not be done. In the case of Champion v. Joslyn, 44 N. Y. 653-658, the trial court, in charging the jury upon the question of a tender, said: "It must be stock to which he has a right, not stock the certificates of which he has borrowed, having no title to the stock, simply to go through the form of a tender." To this an exception was taken, and on review the court says, in reference thereto, that, "if the defendants had lawfully obtained the certificates, and were invested with the power to transfer them, it was of no Consequence to the plaintiff whether they had borrowed them or were the unqualified owners. See, also, Burrall v. Railroad Co., 75 N. Y. 211; Barclay v. Culver, 30 Hun, 1; Nourse v. Prime, 4 Johns. Ch. 490.

A purchaser of property, in order to rescind, must do so promptly upon the discovery of the fraud. Cobb v. Hatfield, 46 N. Y. 533. The plaintiff purchased the stock in the summer of 1882, and he did not attempt to rescind until the year 1886; but he tells us that he did not discover that the defendant had delivered his own stock until that time. While this fact might have been found against him, we think the question was one that should have been submitted to the jury. The judgment should consequently be reversed, and a new trial ordered, with costs to abide the event. All concur.

OCEANIC STEAM NAV. Co., Limited, v. CoмPANIA TRANSATLANTICA ESPANOLA. (Court of Appeals of New York, Second Division. Oct. 1, 1892.)

NEGLIGENCE-DANGEROUS PREMISES - INDEMNITY BY OCCUPANT-JUDGMENT OF FEDERAL COURT.

1. Where a judgment is recovered against and paid by the lessee of a wharf for injuries to a person caused by a defect due to the negligence of a sublessee and occupant thereof, and to which the lessee did not contribute, he may sue the sublessee for indemnity.

2. The fact that the judgment for the injuries was recovered against the lessee in a federal court having jurisdiction, and could not have been recovered had the person injured sued in the state court, cannot defeat the lessee's right to sue for indemnity in the state court, since the latter court must give the same

force and effect to judgments of the federal as to those of the state courts. The judgment, though it would not be conclusive evidence of the liability of the sublessee to the lessee, would be proof that the lessee was legally liable to the person injured, and of the amount of that liability, and the sublessee's liability for such damages would have to be determined by evidence outside of the record in the federal court. 11 N. Y. Supp. 728, reversed.

Appeal from superior court of New York city, general term.

Action by the Oceanic Steam Navigation Company, Limited, against the Compania Transatlantica Espanola. Plaintiff was nonsuited at the circuit, and its exceptions were ordered heard at the general term in the first instance. From a judgment entered on an order of the general term, (11 N. Y. Supp. 728,) denying its motion for a new trial, overruling its exceptions, and dismissing the complaint, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by FOLLETT, C. J.:

The plaintiff is a British corporation, engaged in running the White Star Line of steamships, and the defendant is a Spanish corporation. The department of docks in the city of New York, by an instrument in writing, forconvenience called a "lease," "granted" for a period which included the years 1886 and 1887 to the Oceanic Steam Navigation Company "all and singular the wharfage which may arise, accrue, or become due for the use and occupation by vessels of more than five tons burden of all that certain wharf property situated on the North river, in the city of New York, and known as 'Nos. 44 and 45,' together with the bulkheads between them." The instrument contains the following provisions: "And the said parties of the first part hereby authorize the said party of the second part to enter upon the said premises, and take possession of the same, at the time herein designated, and for the purpose herein set forth, and to hold and enjoy the same, subject. however, to all ordinances of the mayor, aldermen, and commonalty of the city of New York now in force, or which may hereafter be adopted by the said mayor, aldermen, and commonalty of the city of New York, and all laws of the state of New York which are now in force or which may be hereafter enacted in any way ap pertaining or relating thereto.

And the said party of the second part, for itself, its successors and assigns, agrees to erect on each of said piers Nos. 44 and 45, under the supervision of the said department of docks, and in conformity with the fire laws of the city of New York, and in accordance with plans to be tiled in and approved by said department, suitable sheds for the protection of merchandise and freight." It seems that pier 45 was used by, and was generally sufficient for, the White Star Line, and that No. 44 was from time to time let for the use of other lines and vessels. Pier 44 was about 500 feet long, and extended from the shore westerly into the river. It was covered by a shed used for the protection of freight received for outgoing and discharged from incoming vessels. Ou the sides of the