plaintiffs' judgments; the defendant insisting that this statutory prerequisite is one which concerns the stockholders only, and that the plaintiffs, as judgment creditors, can take no advantage of its omission. The question which is thus presented is one which has been several times incidentally considered by the courts of this state, but no adjudication has been cited, and I am unable to find one, in which it has been actually and definitely determined. It may be profitable, therefore, to briefly consider the several stat utory provisions which are designed to restrain and regulate the mortgaging of the real and personal property of corporations, and then to give proper construction to the same with the aid of such interpretations as the courts have intimated ought to be applied. At common law, any corporation, unless restrained by some provi sion of its charter, was permitted to mortgage its property in pay. ment of its debts or to secure money borrowed for business purposes, (De Ruyter v. St. Peter's Church, 3 N. Y. 238; Curtis v. Leavitt, 15 N. Y. 9;) but this right was curtailed by the general act "to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," which provides that any corporation formed under that act shall be capable in law of holding and conveying any real and personal estate which may be nec essary to enable it to carry on its business, "but shall not mortgage the same, nor give a lien thereon." Laws 1848, c. 40, § 2. This prohibition was modified, however, in 1864, by permitting a corporation to mortgage any or all of its real estate to secure the payment of any debts contracted by it. Laws 1864, c. 517, § 2. In 1871 it was still further relaxed by extending the privilege so as to include personal property, (Laws 1871, c. 481,) and again in 1878, so as to embrace its "franchises, privileges, rights, and liberties," (Laws 1878, c. 163.) But to each of these enabling acts is attached the proviso that the written assent of the stockholders owning at least two-thirds of the capital stock of such corporation shall be first filed in the office of the clerk of the county where the mortgaged property is situated, although this condition was so far modified in 1875 as to permit the certificate of assent to be filed nunc pro tunc in any case where by accident or mistake it had been omitted. Laws 1875, c. 88. It appears, therefore, that while the tendency of legislation upon this subject has been constantly in the direction of affording greater liberty and better opportunities to corporations in the conduct of their business and in the management of their affairs, the legislature has in all of these changes and modifications attempted to guard and protect such persons as may be affected thereby, and the question now presents itself, who are the persons for whose interests so much consideration has been shown? Are they the corporators or the creditors? It will not be claimed, I assume, that the inhibitory feature which was embraced in the original act was designed to benefit any one but the members of the corporation themselves, and it appears equally certain that its modification was due to the requirements of business which demanded that artificial persons should to a certain extent be placed upon the same plane as natural ones, and to that end that they should be permitted to secure their debts, and even to borrow money, in like manner as individuals. But yet some restriction was necessary. A corporation organized under this act was a creature of the state, and therefore the state owed to the individual stockholders the duty of affording them adequate protection; consequently it enlarged the powers of the ag gregation, but upon condition only that the majority of those interested in availing themselves of the privilege thus afforded should assent in writing thereto; or, in other words, it inhibited any officer or officers of the corporation from incumbering its property until a certain proportion of the members thereof had formally certified that such a course was satisfactory. This, then, is clearly a provision designated for the protection of the stockholders instead of the creditors of a corporation, and, if so, then it is diffi cult to see what interest the latter have in insisting upon its observance. It is undoubtedly true that a mortgage of the real or personal property of a corporation, executed by its officers, without first obtaining and filing the statutory consent of the requisite number of stockholders, is, in a certain sense, void, because it fails to comply with the requirements of the statute; but it has been held, and, it seems to me, very properly, that where it is the manifest intention of the legislature to give protection to determinate individuals, the purpose is sufficiently accomplished if those individuals are afforded the liberty of avoiding the inhibited act. Rex v. Hipswell, 8 Barn. & C. 466; Terrill v. Anchauer, 14 Ohio St. 80; Beecher v. Rolling Mill Co., (Mich.) 7 N. W. 695. Applying the rule thus stated to this case, it follows that, if a corporation mortgages its property in contravention of the provisions of the statute, the individuals for whose protection those provisions were enacted may avoid the mortgage, but they may also treat it as a valid security; and, if they elect to pursue the latter course, what right has a creditor to complain? This view of the matter is not without considerable authority in the way of dicta, although, as before stated, it has not as yet been formulated into an express adjudication. In the case of Sugar Co. v. Whitin, 69 N. Y. 328, 333, Church, C. J., says: "It is quite manifest that the prohibition of the act of 1848 against mortgaging corporate property, and the qualifications in the act of 1864 to the right of mortgaging, were enacted for the benefit and protection of the stockholders." This case has been repeatedly cited with approval of the expression quoted, and in Paulding v. Steel Co., 94 N. Y. 334-341, Danforth, J., says that the statutory assent "has been considered by us as enacted for the benefit and protection of stockholders against improvident or corrupt acts of the officers of the corporation, and not because the legislature regarded the mortgaging of corporate property as improper per se, and it is at least doubtful whether any but stockholders can complain that the condition was not complied with." Again, Judge Andrews, in the case of Bank v. Averell, 96 N. Y. 467, while stating that the assent of stockholders "is an indispensable condition to the creation of a valid mortgage under the act of 1864," takes occasion to add that "the object of the legislature in requiring such assent was the protection of stockholders against improvident, collusive, or unwise acts of the trustees, the governing body of the corporation, in incumbering the corporate property." This case is cited by the learned counsel for the plaintiff as an authority against the contention that none but stockholders can avail themselves of this privilege, inasmuch as the question was there raised by subsequent lienors for the purpose of defeating the plaintiff's mortgage. It is true that the defendants were purchasers under a second mortgage foreclosure, but it appears that they were also stockholders in the corporation which executed the mortgage, and were therefore in a position to raise the question. Still more recently the dictum of Judge Church in the Whitin Case has been referred to with apparent approval of the principle therein contained, as, for instance, he is quoted by Rapallo, J., with the supplementary sug gestion that the legislative enactments plainly evince that their purpose and intent were to "protect the stockholders from improvident or corrupt acts by the officers of the company," and that “the policy adopted indicates a fear of its improper exercise, (i. e. the mortgaging of corporate property,) and an intention to guard against it." Lord v. Gas Co., 99 N. Y. 547, 555, 2 N. E. 909. And in the case of Welch v. Bank, 122 N. Y. 177, 187, 25 N. E. 269, Follett, C. J., in giving construction to the act of 1864 and its amendments says: "The enabling part of this section was enacted to relieve corporations from the prohibition against mortgaging their property, contained in the second section of chapter 40 of the Laws of 1848; and the proviso in respect to the assent of shareholders is for their protection." It is impossible to read what has thus been quoted from cases decided by the court of appeals without receiving the impression that the view urged by counsel for the defendant Jones upon the argument of this demurrer is the one which must receive authoritative sanction from that tribunal whenever it shall be called upon to meet the question here presented; and so strong is that impression that I should feel compelled to adopt that view even if it were not in consonance with my own judgment, which, it is proper to add, is not the case. The single instance in which a different view appears to obtain is in the decision of the Averell Case, at the general term, (26 Hun, 646,) where Hardin, J., says, "The purpose of the statute was to protect stockholders of the company and bona fide creditors," and in support of this expression of opinion the learned justice cites the case of Beecher v. Rolling Mill Co., supra, and Post v. Dart, 8 Paige, 639. It has already been shown, and a careful reading of Judge Cooley's opinion in the former case will make it very clear, that, so far from that being an authority for the proposition that protection to creditors was within the contemplation of the legislature when the statutes in question were enacted, it holds in so many words that a statute somewhat similar in its provisions was designed for the protection of stockholders only; while the case of Post v. Dart simply decides that a stranger cannot insist upon the invalidity of a usurious mortgage in respect of which he is neither a party or a privy, which is a principle quite in harmony with the defendant's contention in this case. But it is argued the amendments to the act of 1848 merely permit the giving of a mortgage upon corporate property, provided certain things be done, and that, if they are not done, the original act applies with its prohibition. This, however, is not my understanding of the intention of the legislature as expressed by the various amendments to which reference has been made, and as the same has been construed by the courts. On the contrary, its policy seems to be to recede from the inhibitory feature of the original act, and to declare that the mortgaging of corporate property is not improper per se so long as the individual members of the body are protected from any improvidence or corrup tion on the part of their officers. The views which I entertain, and which are here expressed, lead to a conclusion which sustains the demurrer, and make the consideration of the other questions discussed unnecessary. The demurrer is therefore sustained, with costs to the defendant Jones to abide the result of the trial of the issues of fact raised by the answer to the original complaint. (75 Hun, 471.) In re CLARK'S WILL. In re PLACE. (Supreme Court, General Term, Fourth Department. February 15, 1894.) WILLS-PROBATE-SUBSCRIBING WITNESS WITHOUT THE STATE. Code Civ. Proc. § 2620, as amended by Laws 1888, c. 508, providing that where a subscribing witness is absent from the state his testimony may be taken by commission on the application of either party, is permissive, and a will may be admitted to probate without taking the testimony of an absent witness. Appeal from surrogate's court, Oswego county. Proceedings for the probate of the will of Elizabeth W. Clark, deceased. From a decree refusing to admit the will to probate, Frank A. Place, the petitioner, appeals. Reversed. Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ. MERWIN, J. In this case it appeared that one of the subscribing witnesses was absent from the state, but that her place of residence out of the state was known, and her evidence could be taken by commission. It was not so taken. Upon the evidence in fact given, it was found by the surrogate that the will was duly executed in the manner required by law, and that the testatrix at the time of executing it was in all respects competent to make a will, and not under any restraint. Probate was, however, refused "upon the sole ground that the court has no power or jurisdiction to admit said will to probate without causing the testimony of said absent witness to be taken by commission out of the state, as required by sections 2619 and 2620, Code of Civil Pro cedure." The provisions of section 2620, as it stood prior to 1888, would probably justify the conclusion of the surrogate that it was necessary to obtain the evidence of the absent witness. That section, however, was amended by chapter 508 of the Laws of 1888, and, as it now stands, it does not require the evidence of the absent witness to be taken, unless it is asked for by one of the parties. In the present case it was not asked for by any of the parties, and there was in fact no opposition to the proof of the will. We think that the surrogate erred in refusing to admit the will to probate. It follows that the decree should be reversed, and the proceedings be remitted to the surrogate's court, with directions to admit the will to probate. In re Martin's Will, 98 N. Y. 193. Decree reversed, with costs to the appellant, payable out of the estate, and proceedings remitted to the surrogate's court, with directions to admit the will to probate. All concur. (75 Hun, 425.) CITY OF ITHACA v. CORNELL. (Supreme Court, General Term, Fourth Department. TAXATION-ACTION FOR TAXES-COMPLAINT. February 15, 1894.) In an action to recover a tax the complaint is sufficient where it alleges that the common council of plaintiff city "duly assessed" defendant for the amount named, that notice of the same was given to him, that the tax was thereafter duly confirmed by said common council, that the tax was not paid to the city treasurer within the time required, that a warrant was issued to the collector directing him to collect the tax, that more than three months had passed since the date of the warrant, and the tax remains wholly unpaid. Appeal from special term, Tompkins county. Action by the city of Ithaca against Frank C. Cornell to recover a tax of $322 assessed by the common council of plaintiff city against defendant. From an interlocutory judgment sustaining defendant's demurrer to the complaint, plaintiff appeals. Reversed. Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ. M. N. Tompkins, for appellant. Mynderse Van Cleef, for respondent. HARDIN, P. J. In chapter 212 of the Laws of 1888 is the act. to incorporate the city of Ithaca, and in title 4 and section 4 is a provision that assessors shall return to the common council and file with the clerk a tax roll and assessment of each tax directed to be levied upon the taxable inhabitants and property of said city; and in title 5, § 1, power is given to the common council to raise not exceeding $30,000 "by general tax upon the taxable inhabitants of said city on the property therein liable to taxation;" and in section 2 power is given to raise a further sum to pay interest on bonds; and in section 3 it is provided as follows: "The tax so directed to be raised shall be assessed upon all the taxable |