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V. Truman, (Sup.) 23 N. Y. Supp. 913. In the latter of these cases, Forbes, J., and in the former, Ward, J., have so elaborated the statement of the grounds of their decision that we deem it only necessary to refer to their opinions for further argument of the questions there presented.
But if it should be held that the legislature has not so far recog. nized and sanctioned the existing system of local option as to give to the vote of the town the force of law, and make it absolutely binding upon the commissioners, yet we can have no doubt that the commissioners were justified in giving to such vote a controlling effect in the exercise of their discretion whether to grant or refuse license in their town, (People v. Commissioners of Excise, (Sup.) 25 N. Y. Supp. 873;) and we find nothing in the return of the commissioners in this case which necessarily opposes the conclusion that they refused the application of the relator in the exercise of a just discre. tion, based upon a proper consideration of the views and wishes of the electors of the town, as demonstrated in their own election. The order appealed from should be affirmed, with costs to the respondents. So ordered. All concur.
(75 Hun, 290.)
CLARK et al. v. WILCKLOW et al. (Supreme Court, General Term, Fifth Department. January 18, 1894.) DISCOVERY-EXAMINATION OF PARTY BEFORE TRIAL.
In an action on a note signed in the name of a company alleged to be a firm composed of defendants, which the answer denied, an order for the examination of defendants before trial will be granted where the moving affidavit states that plaintiffs have no knowledge of whom the company consists, and no information on the subject, except a statement of the secretary of the state that no articles of association of such company are on file in his office, and a statement at one time of defendant W. that it consisted of defendants as copartners; that all the facts are within the personal knowledge of defendants; that plaintiffs know of no other source of information; that it is necessary to establish those facts on the trial; and that plaintiffs desire such testimony in advance, in order to prevent surprise. Appeal from special term, Monroe county.
Action by Charles H. Clark and others against William Wilcklow and others. From an order denying a motion to vacate an order for the examination of defendants before trial, defendants appeal. Af firmed.
Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
DWIGHT, P. J. The action was on a written agreement, which the complaint alleges was executed on the part of the defendants, in the name of "The Sanitas Soap Vase Co., by William Wilcklow, Manager,” for services to be performed by the plaintiffs for the defendants; and, on information and belief, that the defendants were partners in business under the firm name of
the Sanitas Soap Vase Company. The answer denies the copartership, and denies that the two defendants other than Wilcklow had any interest in the business or in the contract mentioned. The affidavit upon which the order in question was obtained, after the formal averments required by section 872 of the Code of Civil Procedure, states that they have no knowledge of what the defendant company is or of whom it consists, and no information on the subject other than the statement of the secretary of state to the effect that no articles of association of such company were on file in his office, and the statement at one time of the defendant Wilcklow that it consisted of the defendants in this action, as copartners. The affidavit also states that the facts bearing upon the question above mentioned are within the personal knowledge of the defendants alone, and the plaintiffs know of no other source from which those facts can be obtained; that it will be necessary for the plaintiffs to establish those facts upon the trial of the acticn, and they desire the testimony of the defendants in relation thereto, in advance, in order to prevent surprise on the trial. We think the case made was a peculiarly proper one for the order in question, which confined the examination of the defendants to the matters above stated in the affidavit. The plaintiffs have no other means of proving the fact of which they have been informed by one of the defendants than by the defendants themselves. The declaration of Wilcklow is not evidence against the other defendants, and the fact, so far as the plaintiffs know, is locked in their breasts. Must the plaintiffs await the day of trial, and submit to the surprise and defeat which there await them, in case the defendants deny the copartnershin; or may they avail themselves of the process furnished by the Code, and ascertain beforehand whether the fact can be established as they believe it to be? If not, they have the opportunity to withdraw from the litigation, and save the further useless expenditure of time and money, to the defendants as well as to themselves. We perceive no respect in which the case made by the affidavit falls short of the require. ments of the statute, (section 872, supra.) which, among other things, expressly provides that, in case of the noonosed examination of a party to the action, the affidavit need not state any of the facts tending to show that his testimony cannot probably be procured at the trial, (subdivision 5, last clause.) We think the order was properly made by the judge at chambers, and that the order of special term denying the motion to vacate it must be affirmed. Order appealed from affirmed, with $10 costs and disbursements.
(75 Hun, 201.)
WOLFE et al. v. CONKEY AVE. SAVINGS, AID & LOAN ASS'N.
(Supreme Court, General Term, Fifth Department. January 18, 1894.) LOAN ASSOCIATION WITHDRAWAL OP SHARES.
Where the articles of association provide that, after notice of withdrawal of shares, the amount thereof "shall be refunded to such member as soon as the necessary funds are in the treasury," the association cannot lend any of its funds while withdrawal notices are on file;
and the right of the withdrawing member to receive payment is not affected by a resolution by the board of directors that only half of the receipts of the association shall be applied for payment of withdrawals, and the other half should be loaned to members.
Appeal from Monroe county court.
Action by John Wolfe and Ottilie Wolfe against the Conkey Avenue Savings, Aid & Loan Association. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.
Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
DWIGHT, P.J. The action was first tried in the municipal court of Rochester, and, from the judgment there rendered for the plaintiffs, an appeal was taken to the county court. The action was brought to recover the amount standing to the credit of the plain. tiffs on the books of the defendant association on the 18th day of March, 1891, on which day the plaintiffs filed with the association their notice of withdrawal of all their shares, with the dividends due thereon. The notice of withdrawal was filed under a provision of the articles of association of the defendant, as follows:
“Members not baving received a loan may withdraw one or more of their shares from the association at any time by giving notice in writing to the board, and the liability to pay further dues, and the right to dividends, shall cease with the filing of such notice. Applications for withdrawal shall only be received in the regular order of business, and the principal thereto. fore paid on such share or shares shall be refunded to such members as soon as the necessary funds are in the treasury.
Dividends shall not be paid to any member except upon the final withdrawal of all his shares." Article 14, § 2.
The plaintiffs had never had a loan from the association; and, having given notice of the final withdrawal of all their shares, they were entitled to receive, with the principal paid on such shares, the dividends due or declared thereon down to the filing of their notice of withdrawal. The amount then standing to the credit of the plaintiffs, including dividends, was the sum of $771.25, for which sum, with interest, judgment was rendered in their favor. It seems apparent that the single test of the plaintiffs' right to be paid the amount then standing to their credit, and, consequently, their right to recover in this action, is the question whether, at any time after the filing of their notice of withdrawal, and before the commencement of the action, there were the necessary funds in the treasury of the association to make such payment. Of course, applications for withdrawal were entitled to be honored in the order of their filing, and the necessary expenses of conducting the business of the association must have precedence of payment over any such application. But the undisputed evidence in the case establishes the fact (which is found by the court) that over and above all such previous applications, and the actual expenses of the association during the interval mentioned, there was a balance of moneys, received in the regular course of business, more than sufficient to pay the amount due to the plaintiffs. But the proofs also
show that this balance, and much more, was exhausted by loans to members made during the same interval. And here arises the single question in this case, viz. whether the defendant had a right, under its articles of association, to appropriate any of its funds to the making of loans while withdrawal notices were on file which had not been honored. It seems very clear that this question must be answered in the negative. The only pretext for the contrary contention seems to be found in a resolution of the board of directors, adopted some time before the filing of the plaintiffs' notice, to the effect that only one-half of the receipts of the association should be applied to the payment of withdrawals, and the other half should be loaned to members. But the articles of association of every organization for mutual benefit, like the defendant, constitute the contract between the association and the individual member, and no provision of such contract is subject to be abrogated, or its obligation impaired, by any act of the board of directors which is not expressly empowered by the articles themselves. As we have seen, the articles in this case (article 14, § 2, supra,) plainly give to applications of withdrawal precedence over all other appropriations of the funds, except, from necessity, the actual expenses of the association. The provision is that such applications shall be paid "as soon as the necessary funds are in the treasury;" and this provision necessarily limits and controls the previous provision for loans, which is as follows: "Art. 10, § 1. All moneys received by
he association shall be loaned to members, except as hereinafter provided.” This, it seems to us, is all there is of this case. Under the provisions of the articles of association, it was not competent for the board of directors to prefer applications for loans to applications for withdrawals; and but for such preference, as the undisputed evidence shows, there were the necessary funds in the treasury, during the interval between the filing of the plaintiffs' notice and the commencement of their action, to pay all previous applications of the same character, as well as that of the plaintiffs. The judgment of the county court was therefore right, and must be affirmed. Judgment of the county court of Monroe county appealed from affirmed, with costs. All concur.
(75 Hun, 199.)
EVANS v. HOWELL et al.
(Supreme Court, General Term, Fifth Department. January 18, 1894.) REFERENCE-FINDINGS OF FACT.
Findings of fact by a referee will be given effect as such though they are designated in the report as conclusions of law. Appeal from judgment on report of referee.
Action by Rebecca B. Evans against Jennie A. Howell and others. From a judgment entered in Livingston county in favor of plaintiff, defendants appeal. Affirmed.
Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.
G. W. Daggett, for appellants.
DWIGHT, P. J. The action was to foreclose a contract of purchase and sale of real estate. The defense was usury. The issue was therefore necessarily one of fact, with the burden of proof on the defendants. But we are not permitted to review the findings of fact, for the reason that the appeal book does not purport to contain all the evidence given on the trial, (Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. 1022,) nor was there a request by the defendants to find any fact in support of the defense. We are therefore shut up to the inquiry whether the findings of fact actually made support the conclusions of law reported by the referee, and these in turn the judgment directed by him. And here it is to be observed that there is in the findings of fact (so denominated) no finding upon the question of the corrupt and usurious agreement between the parties which is averred in the answer of the defendants, but all the affirmative facts are found which would entitle the plaintiff to the relief demanded in her complaint. Probably, in the absence of any re quest to find on the issues raised by the answer, the findings mentioned were sufficient to support the formal conclusions of law, and the direction of judgment in favor of the plaintiff; but in that part of the report which is denominated "conclusions of law” we discover findings which amply negative the averments of the answer. They are as follows:
"Second, that the transaction between the plaintiff and the defendant Jennie A. Howell was a purchase and sale, and not a loan, and the same was not usurious; third, that no agreement for the loan of money at a usurious rate of interest was ever made by the plaintiff with the defendants, or either of them; fourth, that no agreement for the loan of money was ever made by the plaintiff with the defendants, or either of them."
These are, undoubtedly, findings of fact, and will be given effect as such, notwithstanding the designation under which they stand in the report. Sherman v. Railroad Co., 64 N. Y. 254; In re Clark, 119 N. Y. 427, 23 N. E 1052.
No exception taken on the trial is presented in the argument of counsel for the appellant, and none seems to require discussion here. The judgment appealed from should be affirmed, with costs. So ordered. All concur.
(Supreme Court, General Term, Fifth Department. January 18, 1894.) CONTRACTORS' BONDS-ACTION BY LABORERS.
Laws 1850, c. 278, $ 3, providing that the sureties on a bond given by a contractor for a public work to pay the laborers employed by him are not liable "unless proceedings shall be commenced within 30 days after the completion of the labor, payment of which is secured by such bond," refers to the performance of labor by each laborer, and not to the completion of the entire contract. Appeal from judgment on report of referee.