8. An action having been commenced
by certain taxpayers of the town
of S. in their own behalf and that
of other taxpayers, to restrain the
enforcement of certain town bonds,
and to have the law under which
they were issued adjudged uncon-
stitutional, a resolution was adopted
at an annual town meeting author-
izing the supervisor of the town,
on consent of the plaintiffs in said
action, to assume control thereof,
prosecute it to a final determina-
tion and pay all the expenses; and
for that purpose to borrow on the
credit of the town all sums of
money needed. The supervisor,
acting in accordance with the reso-
lution, borrowed money on the
credit of the town, giving its notes
therefor, which money was used
for the purpose specified. In an
action upon the notes, held, that,
assuming the electors of the town
had power to authorize its super-
visor to take control of the pending
action, also, that it might be
treated as if commenced in the
name of the town or its supervisor,
and that said electors had power
to direct money to be raised for
prosecuting that action, this action
was not maintainable. Wells v.
Town of Salina.

280

9. Where the maker of negotiable
paper shows that it has been ob-
tained from him by fraud, a sub-
sequent transferee, must, before

10.

1.

he is entitled to recover thereon,
show that he is a bona fide pur-
chaser, or that he derived his
title from such a purchaser.
It is not sufficient to show
simply that he purchased before
maturity and paid value, he must
show that he had no knowledge
or notice of the fraud. Vosburgh
v. Diefendorf.

*

*

*

357

The provision of the Code of Civil
Procedure (1778), declaring that,
in an action against a corporation
"to recover damages for the non-
payment of a promissory note, or
other evidence of debt for the ab-
solute payment of money upon
demand, or at a particular time,
unless the defendant
serves with a copy of his answer
or demurrer, a copy of an order
of a judge directing that the
issues presented by the pleadings
be tried, the plaintiff may take
judgment, as in case of default in
pleading at the expiration of
twenty days," does not apply to
an action wherein it is sought to
charge a corporation as indorser
of a promissory note; it is to be
confined strictly to actions upon
instruments which admit on their
face an existing debt payable
absolutely. Shorer v. T. P. & P.
488

Co.

2. In an action upon a promissory
note against defendant as maker,
it appeared that his signature
thereto was procured by fraud.
The note was purchased of the
payee by R. before maturity, for
half its face value. Plaintiff
claimed as purchaser from R.

Defendant's evidence tended to
show that R. purchased with
moneys furnished by plaintiff, who
was present at the time of the
transfer and directed R. to pur-
chase. R. testified that he had no
knowledge of the fraudulent
origin of the paper, or of any facts
constituting a defense. Neither
the plaintiff nor the payee were
sworn as witnesses. The trial
court held that plaintiff, as matter
of law, was entitled to recover
the amount he paid for the note,
but if anything beyond that was
claimed, the case was one for the
jury. Plaintiff having elected to
take a verdict for the amount he
paid for the note, a verdict was
directed accordingly. Held, error;
that the question as to whether
plaintiff was a bona fide purchaser,
was one of fact for the jury; as
was also the question as to
whether R. purchased for him-
self or as agent; that if in the
latter capacity, although he was
not chargeable with notice of the
fraud, this would not shield plain-
tiff from the legal consequences
of any notice he himself might
have had.
Id.

BOND.

See UNDERTAKING.

BROKERS.

One S., a rubber broker, by means
of false and fraudulent repre-
sentations that he had effected
a sale of a quantity of rubber for
plaintiff, obtained from him a de-
livery order for the rubber, then
on board of a steamboat, for the
purpose of delivery to the alleged
purchaser. By means of such
order S. obtained possession of
the rubber, stored it and took a
warehouse receipt therefor in his
own name, which he delivered to
defendant to secure an advance,
to be paid on sale of the rubber.
Defendant sold, and after deduct-
ing the advance, paid over the
balance to S. In an action to
recover possession of the rubber,
held, that S. obtained possession
by a larceny; and so, that defend-
ant acquired no title and was liable
for a conversion. Soltau v. Ger-
dau.

380

BROOKHAVEN (TOWN OF).

1. In an action to recover damages
for the erection, and to compel
the removal, of a wharf and bridge
alleged to have been unlawfully
erected by defendants upon lands
of plaintiffs, adjoining and under
the waters of Setauket bay, in
the town of Brookhaven, Long
Island, plaintiffs claimed title to
the land above high-water mark
as descendants of F., one of the
original proprietors of the town, to
whom a lot including the upland
adjoining the bay was alloted.
It appeared that the structures in
question extended above high-
water mark in front of the F. lot.
Held, that in the absence of any
evidence of a reservation by the
town of land above high-water
mark, the presumption was that
plaintiffs' title extended to that
mark; and so far as said structures
extended above it, they were en-
titled to have them removed.
Roe v. Strong.

2.

1.

316

a

As to the lands under water plain-
tiffs claimed title under a deed
from S. to B., executed in 1768,
which purported to convey
certain piece of salt thatch," the
bounds of which as given included
the locus in quo. It appeared
that plaintiffs and their predeces-
sors in title, so far back as the
memory of living witnesses ex-
tended, exercised acts of ownership
by cutting thatch, leasing the right
to cut to others, and in one instance
brought suit against an alleged
trespasser. It also appeared that,
prior to 1693, the town had con-
veyed to a private person the land
under water in the bay up to the
line of and excepting that portion
included in the deed to B. Held,
that the evidence justified the
presumption of a grant of the
soil, and so made out a prima
facie title in the plaintiffs; and
that, therefore, a dismissal of the
complaint was error.
Id.

BROOKLYN (CITY OF).

The provision of the charter of the
city of Brooklyn ($ 30, tit. 22, chap.
583, Laws of 1888) prohibiting the
maintenance of an action against

the city, unless it shall appear by
the complaint that thirty days have
elapsed since the presentation of
the claim or claims upon which
the action is founded duly verified
to the comptroller of the city for
adjustment, does not apply to
claims arising ex delicto. Har-
rigan v. City of Brooklyn. 156

2. In an action to recover damages
for the death of D., plaintiff's
intestate, alleged to have been
caused by drinking unwholesome
water from a well, used gratuit-
ously by the public, belonging to
defendant, and under its control, it
was not claimed either that the
well or pump was improperly con-
structed or out of repair, that the
water became unwholesome from
any defect in the well, or from any
external exposure which could, by
any reasonable care, have been
avoided; that defendant, or any of
its officers, or anyone, did any-
thing to render the water impure;
that anything could have been
done to purify it or prevent its
impurity, which could only be dis-
covered by a careful chemical
analysis; or that defendant, prior
to the death of D., had notice
of the unwholesome character of
the water. The well had been ex-
tensively used for years, and there
was no proof that prior to August,
1882, the water had caused any
injury. D. died August 24, 1882.
The plaintiff was nonsuited. Held,
no error; that while it was the
duty of defendant to use reason-
able diligence to keep the well in
repair and to guard against any
dilapidation or danger resulting
from its use, it was not an insurer
of the quality of the water, and
to authorize a recovery it was
necessary for plaintiff to show
willful misconduct or culpable
neglect, and this the evidence
failed to do. Danaher v. City of
Brooklyn.
241

3. Under the provisions of the
charter of the city of Brooklyn
(Tit. 18, § 4, 5, Chap. 863 Laws
of 1873), making it the duty of the
common council before ordering
the grading or paving of a street
"to lay out a district of assess-
ment," and to cause a map to
be made designating the lots

SICKELS-VOL. LXXIV.

and parcels of land to be assessed
for the improvement, and pro-
viding that the assessment shall
be confined to said district,
when a lot outside of the district
is included in the assessment by
mistake, the error is to be regarded
as a clerical one, and so is included
in the provision of the charter
(Tit. 10, 10) making it the duty
of the board of assessors to rectify
errors committed in assessments
in certain cases and among others
"when the error is entirely cler-
ical." People ex rel. v. Wilson. 515

4. Mandamus is a proper remedy to
compel the performance of this
duty. When an order has been
made granting the writ, the fact
that it does not affirmatively
appear that the relator, before
the commencement of the pro-
ceedings, applied to the board to
correct the mistake, is not a juris-
dictional defect, requiring the re-
versal of the order.
Id.

263

BUSINESS CORPORATIONS.
Under the provisions of the act of
1875, providing for the organiza-
tion of certain business corpora-
tions (§ 37, chap. 611, Laws of
1875), which makes the stock-
holders "in limited liability com-
panies" individually liable "to an
amount equal to the amount of
stock held by them respectively"
for all the debts of the company,
until the whole amount of capital
stock has been paid in and a cer-
tificate thereof made and recorded,
the liability so imposed is not
penal, but is in the nature of a
contract obligation, and so it sur-
vives the death of a stockholder,
and continues against his personal
representatives. The statutory ob-
ligation which the stockholder as-
sumes when he becomes such, is
inherent in, and becomes part of
every contract made by the cor-
poration with the creditors prior to
the time that the certificate re-
quired is filed. Cochran v. Wiechers.

record filed in this court, in an
action tried by a jury, it appears
that the case presents no question
of law that can be reviewed, the
appeal will be dismissed on mo-
tion. Dalzell v. L. I. R. R. Co.

CASES

626

REVERSED, DISTIN-
GUISHED, ETC.

330), distinguished. People ex rel.
v. Suprs. West. Co.

130

Van Alstyne v. Cook (25 N. Y. 489),
distinguished. Good v. Daland

156

255

Clapp v. Harley (97 N. Y. 610), dis-
tinguished. Good v. Daland. 156
Minick v. City of Troy (83 N. Y.
514), distinguished. Harrigan v.
City of Brooklyn.
159
Reining v. City of Buffalo (102 N. Y.
309), distinguished. Harrigan v.
City of Brooklyn.
159
Dickinson v. Mayor, etc. (92 N. Y.
584), distinguished. Harrigan v.
City of Brooklyn.
159

255

296), distinguished.

City of Brooklyn.

Danaher v.
255

Hun, 578), reversed. M. L. Ins.
Co. v. Shipman.
324