furnished, gas during the pendency of the action. The defendant is protected in its right by the undertaking which has been given to pay it the damages which it may sustain by reason of the injunction. Inasmuch as the Circuit Court had previously obtained jurisdiction to determine the constitutional questions involved, it may be that our Supreme Court, in case that action is prosecuted with diligence, should stay the trial of this action until the determination of that court of the issues in that action, but that question involves the discretion of the Supreme Court, and should be determined by

it.

The order appealed from should be affirmed, with costs, and the questions certified answered to the effect that the Supreme Court has jurisdiction, and that there is nothing in the principle of comity that prohibits it from entertaining jurisdiction.

CULLEN, C. J., and EDWARD T. BARTLETT, VANN, WERNER, WILLARD BARTLETT, and CHASE, JJ., concur.

Order affirmed.

(186 N. Y. 252)

MILAGE v. WOODWARD. (Court of Appeals of New York. Oct. 23, 1906.) 1. MASTER AND SERVANT-BREACH OF CONTRACT OF HIRING-DAMAGES.

In a general action for damages for the breach by an employer of a contract of hiring, the plaintiff is prima facie damaged to the extent of the amount stipulated to be paid, and, while he is under obligation to use reasonable effort to reduce the amount of damages, whether or not the contract is strictly one for personal services, the burden of proving that he obtained or might reasonably have found other employment rests upon the defendant.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 54.] 2. SAME.

Defendant entered into a written contract to employ plaintiff, with his canal boat, horses, and driver, for four weeks, at a stipulated price per week, but after eight days refused, without just cause, to continue the employment. Plaintiff remained with his boat, which was moored at a public place in the city, during the remainder of the time, and testified that no other employment was offered him, nor did he know where he could have obtained any. Held that, in the absence of any contrary showing by defendant, such evidence warranted a verdict in favor of plaintiff for the full contract price. Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by George Milage against Charles E. Woodward. From a judgment of the Appellate Division (94 N. Y. Supp. 1155), reversing an order granting a new trial unless the amount of recovery was reduced, and adjudging judgment for plaintiff for a certain sum, defendant appeals. Affirmed.

Richard E. White, for appellant. W. A. Matson, for respondent.

EDWARD T. BARTLETT, J. It is to be remarked at the outset that this is not an action on contract for wages, or for a specified sum due under a written agreement. The plaintiff seeks in this action to recover damages for breach of contract. The complaint specifically alleges "that by reason of the wrongful and unlawful discharge of plaintiff by defendant the plaintiff sustained damage in the sum of $240, no part of which has been paid." "A servant wrongfully discharged has but two remedies growing out of the wrongful act: (1) He may treat the contract of hiring as continuing, though broken by the master, and may recover damages for the breach. (2) He may rescind the contract, in which case he could sue on a quantum meruit for services actually rendered. These remedies are independent of and additional to his right to sue for wages for sums actually earned and due by the terms of the contract." Howard v. Daly, 61 N. Y. 362, at bottom of page 369 and top of page 370, 19 Am. Rep. 285. The plaintiff, by bringing this action, has elected to avail himself of the first remedy above stated. The law applicable to the present case is very thoroughly reviewed in Howard v. Daly, supra; Commissioner Dwight writing a learned opinion. In Moody v. Leverich, 4 Daly, 401, the late Chief Justice Charles P. Daly wrote an opinion, reviewing the authorities, in a case where it was held that a servant wrongfully dismissed by his master is restricted either to an action to recover for the services actually rendered or to a general action for damages for the breach of the contract, in which he may recover any amount due for services and also compensation for damages sustained by the further breach of the contract in wrongfully dismissing him. In Heim v. Wolf, 1 E. D. Smith, 73, Judge Woodruff thus lays down the general rule: "Where an employer discharges a person from his employ, he may wait until his wages become due and then recover them; but that rule is to to taken with restrictions. He recovers, not for services rendered, but damages for breaking the contract by discharging him before the termination of his agreement; that is, for refusing to employ and pay him according to the contract. If it appears that he was idle and could not obtain other employment, his damages would be the whole compensation agreed upon; but, if he obtains employment, then he is entitled only to a partial recovery."

It appears that the plaintiff was a resident of the city of Rochester and the owner of a canal boat and three horses; the crew consisting of himself, as captain, and a driver. The plaintiff, as captain of the boat, supervised the work in which the outfit was employed. On the 27th of July, 1903, the plaintiff and defendant entered into a contract in writing, whereby it was agreed in substance that the plaintiff was to furnish the canal boat, with its crew, three horses, and

all necessary equipment, to the defendant for the purpose of boating sand from the property of the defendant near Cartersville, on the Erie Canal, to the city of Rochester. The defendant agreed to pay for the use of said boat, crew, and equipment $60 a week of six days, or, if work was performed seven days per week, the sum of $63. The term of the The term of the contract was fixed at four weeks, beginning July 28, 1903. The defendant in his answer set up that there was an additional agreement, which on the trial was stated to be oral, to the effect that it was agreed, on the part of the plaintiff, that the loads of sand to be placed upon the boat should sink her in the water to the six-foot line, and that the boat should be so loaded in order to constitute a boat load. It is sufficient to say as to the alleged oral agreement that the defendant testified that during a conversation prior to the signing of the written contract he said to the plaintiff that he supposed he could load to the six-foot line, and the latter replied, "You can put on what you have a mind to, but my advice is not to put more in on one day than you can take off in the next." The defendant reiterated in his testimony that the conversation took place during the negotiations just prior to the signing of the written instrument. It therefore follows, under the familiar rule of law, that all previous negotiations are merged in the written instrument, and that the writing between the parties represents the entire contract. The course of the trial renders this point of little importance, as the attention of the the attention of the learned trial judge was not called to the same, and he submitted the question to the jury as to whether the oral contract was made in addition to the written one, and, the verdict being for the plaintiff, it must be assumed that the jury found that no such contract was made, or, if made, it had not been violated, for reasons that will presently appear.

The plaintiff, in pursuance of the contract, was engaged for a period of eight days in drawing sand for the defendant from Cartersville to the city of Rochester, some three loads in all, when he received a letter from the defendant, dated August 5, 1903, reading as follows: "As you have refused to draw the amount of sand to a load that I am entitled to, and in addition to that have signified your willingness for me to get some one else to do my boating, I have decided to terminate the contract entered into with you. You can get the $80 due you by calling at my office."

can be released and go to work, you can submit them to Mr. Milage, who will be with the boat, subject to your consent. Otherwise, the boat is yours pursuant to the contract, and Mr. Milage will insist upon the contract price." On August 14th the defendant replied to this last communication as follows: "Your favor regarding the George W. Milage matter came duly to hand. Have been out of town, or would have given your letter attention before. I can only say that I discharged Capt. Milage for cause which I then considered and still consider sufficient." The record clearly discloses that the only cause of difference between the parties was plaintiff's failure to load his boat with the sand in question to the six-foot line. As we have before pointed out, the plaintiff was under no obligation, by the terms of the written contract, to load his boat to the six-foot line; but, assuming that he was so obligated, there was a sharp conflict of evidence as to the reason for his failure to do so. The plaintiff testified that there was not a sufficient depth of water at the defendant's dock to permit loading to the six-foot line; that the effect of so doing would be to put the boat aground. This statement was controverted by defendant's foreman. As the jury found for the full amount of damages claimed, it must be assumed that they also reached the conclusion that there was no sufficient ground for the defendant to terminate the contract.

This leaves the main question on this appeal to be considered. It is contended by the defendant that the plaintiff rested under the obligation, after his discharge, to make a reasonable effort to secure employment elsewhere in order to reduce the amount of damages he might sustain by reason of the termination of the contract; and, hav ing failed to do so, the recovery of any sum, in addition to the sum of $80 admitted to be due for services actually rendered, constituted legal error. This seems to have been the view of the learned trial judge, as he granted defendant's motion for a new trial unless the plaintiff consented to reduce his recovery to the sum of $80. The Appellate Division rendered judgment for damages in the full amount called for by contract, $240. The contract in this case is not one for personal services exclusively, as was the fact in many of the authorities cited, but was an agreement for the personal services of the plaintiff as captain, together with the use of his boat and driver in a special business of transporting property on the Erie Canal. It is doubtless the law that the obligation of a plaintiff to reasonably reduce, if possible, the damages a defendant may suffer by reason of breach of contract, is not alone applicable to contracts of service. Emmons v. Elderton, 4 H. L. Cas. 646; Costigan v. Mo

tiff]. If, in the meantime, you have any proposition of compromise, so that the boat

Dec. 758; Dillon v. Anderson, 43 N. Y. 231; Hamilton v. McPherson, 28 N. Y. 72, 84 Am.

Dec. 330.. In an action to recover damages for breach of contract, prima facie the plaintiff is damaged to the extent of the amount stipulated to be paid. Howard v. Daly, 61 N. Y. 362, 371, 19 Am. Rep. 285. At the page last cited this court said: "The burden of proof is on the defendant to show either that the plaintiff has found employment elsewhere, or that other and similar employment has been offered and declined, or at least that such employment might have been found. I do not think that the plaintiff is bound to show affirmatively, as a part of her case, that such employment was sought for and could not be found. 2 Greenleaf on Evidence, § 261a; Costigan v. M. & H. R. R. Co., 2 Denio, 609, 43 Am. Dec. 758."

The appellant insists that he was relieved from assuming this burden of proof for the reason that the plaintiff admitted, when on the witness stand, that he had made no effort to obtain employment. It is true that on cross-examination the plaintiff was asked if he made an attempt to get work, and he replied, "No, sir." The plaintiff, however, is entitled to the effect of his entire examination, direct and cross.' It seems that he not only notified the defendant that during the balance of the 4 weeks of employment-a period of 20 days only-he would hold the boat ready to perform the contract, but that she was moored in a public place or basin in the city of Rochester, where any one desiring to secure the employment of a captain and his boat would naturally apply. The plaintiff testified: "My boat was on the canal, and my horses and everything was there, and no work was offered to me in any way. There was no chance to do anything. I took care of my horses and attended to my boat, and stayed there in readiness for the man if he wanted the boat to go on.

*

* I stayed there in Rochester with my boat all the time. I did not see anything at that time anywheres where I could do any work." The circumstances of this case are somewhat peculiar. The total period of employment was for only 4 weeks. The plaintiff had worked 8 days under the contract, leaving only a balance of 20 days to complete performance. His business was that of a boatman on the canal, and it was more difficult for him to secure additional employment than would be the case of an ordinary clerk or employé. The fact that the boat was moored at a public place in the city of Rochester, where it would be natural for any one to go who desired to secure transportation of goods on the canal, is sufficient. It certainly cannot be successfully asserted that the plaintiff, in view of these facts, admitted that he made no effort to secure employment. It was no part of his affirmative case to go further.

Upon breach by an employer of a contract of employment, by a discharge of the employé before the expiration of his term of service,

the latter is only bound to use reasonable diligence to procure other employment of the same kind in order to relieve the employer as much as possible from loss consequent upon the breach. He is not bound to look for or accept occupation of another kind. Fuchs v. Koerner, 107 N. Y. 529, 14 N. E. 445. It is clear that the defendant did not sustain the burden of proof resting upon him to show that the plaintiff had found, or could have found, employment elsewhere. It follows that the defendant was guilty of a breach of the written contract between himself and the plaintiff, and that the latter, having elected to sue for the resulting damages, was entitled to recover, as such, the amount stipulated to be paid him thereunder. The judgment appealed from should be affirmed, with costs.

CULLEN, C. J., and HAIGHT, VANN, and CHASE, JJ., concur. GRAY, J., absent. HISCOCK, J., not sitting.

Judgment affirmed.

(186 N. Y. 215)

In re DIRECTORS OF WESTCHESTER TRUST CO. (Court of Appeals of New York. Oct. 16, 1906.) CORPORATIONS REDUCTION IN NUMBER OF DIRECTORS-CONSTRUCTION OF STATUTE.

Under section 21 of the stock corporation law (Laws 1890, p. 1070, c. 564, as amended by Laws 1905, p. 2121, c. 750), which provides for a reduction by the stockholders of the number of directors of a corporation, and requires a duly certified transcript of the proceedings of the meeting to be filed "in the offices where the original certificates of incorporation were filed," a resolution adopted by the stockholders of a corporation reducing the number of directors does not become effective unless, nor until, the required transcript is filed.

Appeal from Supreme Court, Appellate Division, Second Department.

In the matter of the election of directors of the Westchester Trust Company. From an order of the Appellate Division (100 N. Y. Supp. 249), affirming an order of the Special Term denying an application to establish his election as director, Daniel S. Remsen appeals. Reversed, and application granted.

Gerard B. Townsend, for appellant. Ralph Earl Prime, Jr., for respondent.

WILLARD BARTLETT, J. This is a proceeding to establish the election of the appellant as a director of the Westchester Trust Company. It was instituted under section 27 of the general corporation law (Laws 1890, c. 563), which reads as follows: "The Supreme Court shall, upon the application of any person or corporation aggrieved by or complaining of any election of any corporation, or any proceeding, act or matter touching the same, upon notice thereof to the adverse party, or to those to be affected there

by, forthwith and in a summary way, hear the affidavits, proofs and allegations of the parties, or otherwise inquire into the matters or causes of complaint, and establish the election or order a new election, or make such order and give such relief as right and justice may require." Heydecker's Gen. Laws, p. 2861, c. 35, § 27. This provision is derived from 1 Rev. St. (1st Ed.) p. 603, pt. 1, c. 18, tit. 4, § 5, of which it is a substantial re-enactment. Matter of Syracuse, Chen. & N. Y. R. R. Co., 91 N. Y. 1; Matter of Petition of Argus Co., 138 N. Y. 557, 34 N. E. 388.

In January, 1906, the directors of the Westchester Trust Company undertook to decrease the number of directors of that corporation from 25 to 20 by the method prescribed in section 21 of the stock corporation law (Laws 1890, p. 1070, c. 564, as amended by Laws 1905, p. 2121, c. 750). A meeting of the stockholders was duly called pursuant to the requirements of that section, and at such meeting, which was held on January 17, 1906, a resolution was adopted providing for a reduction of the number of directors to 20. If this resolution became effective immediately upon its adoption, there would have been only five directors then to be elected for a term of three years each; whereas, if it did not take effect until the filing of a transcript of the proceedings in the offices where the original certificates of incorporation were filed, it would have been the duty of the stockholders to choose six directors for a three years' term. Votes were actually cast for six directors. Five of them received over 2,000 votes each, while the appellant, who was the only other person voted for, received 158 votes; these being cast by a representative holding his proxy. The contention of the respondent is that the votes cast for the appellant must be disregarded, inasmuch as the reduction in the number of directors had taken effect before the election, while, on the other hand, the appellant contends that the filing of a transcript of the proceedings in the proper offices was essential to make the proposed reduction operative, and, inasmuch as such transcript had not been filed, it was incumbent upon the corporation to choose six directors, and he must be deemed to have been duly elected. The requirement of section 21 of the stock corporation law in regard to the filing of the transcript is as follows: "The proceedings of such meeting shall be entered in the minutes of the corporation and a transcript thereof, verified by the president and secretary of the meeting shall be filed in the offices where the original certificates of incorporation were filed." The offices where the original certificates of incorporation were filed were the office of the county clerk of Westchester county and the office of the superintendent of banks at Albany. The transscript does not apear to have been filed in either place until January 27, 1906, 10 days after the meeting at which the resolution was adopted. The papers read at Special Term

in behalf of the respondent state that one of these transcripts was filed in the office of the Secretary of State, which would not have been the proper office; but the learned counsel for the respondent in his supplementary brief asserts that this statement was a clerical error, and that a transcript was filed as required by law in the office of the superintendent of banks. I shall assume such to be the fact, since in the view which I take of the law it can make no difference in the disposition of this appeal.

It is clear that a resolution to reduce the number of directors of a stock corporation under section 21 of the stock corporation law does not take effect unless a transcript of the proceedings of the meeting at which the resolution was adopted shall subsequently be filed in the proper offices. If the transcript is never filed the resolution never becomes operative. It is also settled that such a resolution does not go into effect until the filing of the transcripts. In Matter of Dolgeville Electric Light & Power Co., 160 N. Y. 500, 55 N. E. 287, it was held to be essential to the legal reduction of the number of directors of a stock corporation that a transcript of the minutes of the stockholders' meeting at which the reduction was resolved upon should be filed in the offices where the original certificates of incorporation were filed. The proceeding there under consideration was an application for the voluntary dissolution of a stock corporation. Before the application a resolution that the number of directors be reduced from 13 to 5 had been duly adopted at a special meeting of the stockholders, but a transcript of the minutes of that meeting had not been filed in the proper offices at the time when the proceedings for voluntary dissolution were instituted. The petition was verified, not by a majority of 13 directors, but only by a majority of 5, and this court held that it was insufficient to give the Supreme Court jurisdiction to entertain the application, inasmuch as the filing of a transcript of the minutes of the stockholders' meeting at which the change was determined upon must have been filed in order to bring about the reduction under the statute. In the Appellate Division, the Matter of Dolgeville Electric Light & Power Co., supra, was distinguished from the case at bar on the assumption that the transcript in the former case was never filed, and it was held that the filing of the transcript in this matter related back to the meeting of the stockholders, and thus made the resolution of reduction effective at the time of the election. The learned court was mistaken, however, in assuming that the transcript was never filed in Matter of Dolgeville Electric Light & Power Co. It appears from the opinion of Parker, C. J., in that matter (160 N. Y. 503, 55 N. E. 287), and also from the record on appeal, that the transcript was in fact filed in the proper offices after the proceeding for the voluntary dissolution of the corporation had been in

stituted. If the doctrine of relation were applicable here it is difficult to perceive why it was not equally applicable in that case, and yet the court there refused to hold that the subsequent filing gave validity to the dissolution proceedings.

A careful consideration of the provisions of section 21 of the stock corporation law convinces me that the number of directors cannot be deemed to be reduced until the date of filing the transcripts. Any other construction of the statute would inevitably lead to doubt and confusion. If the simple adoption of the resolution is pronounced sufficient to reduce the number of directors, then the statutory requirement as to the filing of the transcripts becomes nugatory; and, if it be held that a subsequent filing relates back so as to give effect to a resolution not operative of itself, months might elapse, as was the case in Matter of Dolgeville Electric Light & Power Co., during which the stockholders would be uncertain as to whether a reduction had actually been brought about or not. conclusion is that there was no reduction in the number of directors of the Westchester Trust Company until the transcript of the stockholders' meeting, at which such resolution was adopted, was actually filed in the office of the county clerk of Westchester county and in the office of the superintendent of banks. It follows that there were six directors to be chosen at the meeting of January 17, 1906, and, as only six persons were then voted for, and the appellant was one of those persons, he is entitled to have his election as a director established.

My

The order of the Appellate Division should be reversed, and the application of the appellant granted.

CULLEN, C. J., and EDWARD T. BARTLETT, HAIGHT, VANN, VANN, WERNER, and CHASE, JJ., concur.

Order reversed, etc.

(38 Ind. A. 588)

HOLLIDAY et al. v. PERRY et al. (No. 5,697.)

(Appellate Court of Indiana, Division No. 2. Oct. 9, 1906.)

1. APPEARANCE-FILING DEMURRER.

The filing of a demurrer to the complaint, on the grounds that the court did not have jurisdiction of the persons of defendants and that the complaint did not state a cause of action, constitutes an appearance by defendants.

[Ed. Note.--For cases in point, see vol. 3, Cent. Dig. Appearance, § 27.]

2. TRUSTS-RESULTING TRUST.

Under Horner's Ann. St. 1901, § 2976 (Burns' Ann. St. 1901, § 3398), providing that the provisions of section 2974 (3396) that, when a conveyance for a valuable consideration is made to one person and the consideration is paid by another, no trust shall result in favor of the latter, shall not extend to a case where it appears that by agreement, and without

fraudulent intent, the person to whom the conveyance was made was to hold the land or an interest in it in trust for the party paying the purchase money or some part of it, a trust is created where plaintiffs and defendant agreed to purchase land, the former to furnish a third of the purchase money and have title to a third interest vested in them, the latter to furnish the balance of the purchase money and have the remaining interest vested in him, and when it was time to take title plaintiffs borrowed their third of the purchase money of defendant, and deed of their interest as well as of his was made to him as security for repayment by them of the money borrowed of him, he to deed their interest to them on his being repaid, either by them directly, or by rentals from the land. [Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 105, 106.]

3. FRAUDS, STATUTE OF-PURCHASE OF LAND -WRITTEN CONTRACT.

A contract between plaintiffs and defendant for the purchase of land, they to furnish the purchase money and take title in certain proportions, is in writing, within the statute of frauds, though when it came to taking deed title was taken in defendant's name under a parol agreement that he should hold it as security for the part of their purchase money which he loaned to them.

4. PLEADING FACTS.

A complaint will be sustained, on a demurrer to it for want of facts to state a cause of action, if it is good on any theory. 5. FRAUD-PLEADING.

Fraud, either actual or constructive, is sufficiently pleaded by an averment of facts showing it, without any direct averment of fraud.

[Ed. Note. For cases in point, see vol. 23, Cent. Dig. Fraud, §§ 37, 38.]

6. FRAUDS, STATUTE OF-IN AID OF FRAUD.

One may not avail himself of the defense of the statute of frauds to shield him in the perpetration of a fraud.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, § 270.1

7. ACCOUNTING BY MORTGAGEE IN POSSESSION -MORTGAGES.

Where one has taken title to the land of others as security for a loan under an agreement to account for profits and make conveyance to them on their debt being paid, but refused to do so, they are entitled to an accounting.

[Ed. Note.-For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 513-525.]

Appeal from Circuit Court, Parke County; A. F. White, Judge.

Suit by Elias S. Holliday and another against Henry W. Perry and another. From an adverse judgment, plaintiffs appeal. Reversed and remanded.

Rawley & Hutchison, Geo. A. Knight, Howard Maxwell, and J. M. Johns, for appellants. Puett & McFaddin and G. W. Payne, for appellees.

COMSTOCK, P. J. The complaint is in one paragraph and alleges: That some time prior to the 11th day of January, 1896, the defendant Henry W. Perry proposed to the plaintiffs, who were engaged in the practice of law, that if they (the plaintiffs) would prepare and assist him in taking options for the sale or leasing of certain coal and mineral lands in Parke county, Ind., he (said