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The first question was properly disposed of | own therefor, whatever. The liquors did not by the general term, (3 N. Y. Supp. 508.)

belong to me; they belonged to the men that drank them. They were not bought in my name, but in the name of the Valley Social Club, and bills were rendered to that organi

about the 1st of June, 1887, with William D. Harris as president, and six trustees." It further appeared that he was treasurer, and that all the moneys of the club came to his hands, and had done so since its formation. The club was not incorporated; 20 or 25 men met together, and made the arrangements. Others subsequently joined, so that the present number is 500. Andrews took the rent, and paid the wages of himself and Keeler. This he said was in pursuance of a standing order of the officers of the club. The matter of dividends has been considered by the club, and it was upon motion decided to use the money on hand to defend this suit, and make a dividend of what was left when the suit is ended.

As to the second we are unable to agree with that court. Upon the trial one S., describing Andrews' place, says: "Before the 1st of May, 1887, Andrews occupied the prem-zation for them. The club was organized ises as a saloon. The front room is used for a fruit, confectionery, and tobacco store. Back of that, and partitioned off, is a room with a bar, table, and chairs." He also says: "I got whisky and ale of Andrews in the back room, and paid him for it. Some I drank there, and some I took home and drank. Paid him ten cents for that I drank there, and a shilling for that I took home." C., a minor attending school, was often at this place, and drank both ale and whisky, and paid for it. Bought it for others, and paid for it. J. had ale and whisky there, and on one occasion bought half a pint of whisky for which he paid twenty-five cents, and carried it away. Chase drank there several kinds of liquor,-gin, whisky, and beer,-and paid for it, ten cents for gin and whisky, and five cents for beer. Jones says the place was a saloon soon after it was built, and Andrews has always run it. Jones frequently drank there, bought whisky by the glass, and paid Andrews or Keeler for it. Keeler testified that he was employed by the defendant at this place, and paid by him. He says: "I wait on customers to cigars, fruits, and confectionery, and also wait on members of the club. Since July 10th, last, I have delivered both ale and whisky to mem-tutes a sale within the meaning of the statbers of the club there by the drink, and took pay therefor in cash. Have done this a good many times. The sales that have been made by me have all been made by Andrews' direction." Upon cross-examination by defendant of these witnesses, they described themselves as members of the "Valley Social Club," and it appeared that when persons not members came in with a member and called for liquor it was supplied, but payment made by the member. It was shown that neither Andrews nor the club had a license. It was refused to Andrews in May, 1887, and on the 1st of June, 1887, the club was organized.

The trial judge, in submitting the case to the jury, assumed that the liquors belonged to the club, and waiving the question as to the liability of the defendant for liquors sold or delivered to the members of the club, said, in substance, "that where any person, acting as agent or steward of such an association, does, upon request of a member, deliver to a person not a member liquors belonging to that association, and takes pay for it, although from that member, the transaction consti

ute, and the offense charged in the indictment is complete." In that we find no error. The liquor belonged to the association, not a legal entity as a corporation, but as joint owners or tenants in common. I do not say that circumstance distinguishes this case from one where the liquor is owned by an incorporated club; that need not be considered; it is the character in which they act. Five hundred men buy a quantity of liquor; they store it, and appoint an agent to manage it. On the application of one of the 500, the agent separates a small quantity from the mass of liquor, fixes its value, delivers the quantity so separated, as directed, and receives its value or price in money. What is that but a sale? It is not an evasion of the statute, it is a violation of it. We have before us the scheme

At the close of the plaintiff's case the defendant asked to be discharged, upon the ground that there was no proof of a sale of intoxicating liquors, ale, or wines by him, of the association and its by-laws, and can and, being refused, went into evidence. An- see that the transaction was not in conformdrews, the defendant, testified that the de- ity to either. We are therefore not called scription of the place by witness S. was cor- upon to say whether, if it had been, it would rect; that in the front room he had cigars, to- or not have relieved the defendant. The bacco, fruit, and confectionery, and that was scheme, as declared in the eighth by-law, is his own private business; that the room back that "the expenses of this club shall be susof that was leased to the "Valley Social Club" tained by voluntary contributions to its funds by himself and wife for the term of one year by the members, and the refreshments furfrom the 23d of May, 1887. He was stew-nished shall be enjoyed by the members in ard of that club. He said: "I have heard proportion to the amount contributed by each. the witnesses sworn on the part of the peo- Such contributions shall be receipted for by ple. Heard them testify that they were mem- the treasurer by certificates; and, as a means bers of the club, and procured drinks at that place. That I do not deny in any way. None of the drinks had by any of the witnesses was my property, nor did I receive any pay of my

of adjusting the expenses equitably between the members, such certificates shall be surrendered to the employes of the club as such refreshments are consumed by such mem

bers." In the case before us no certificates | upon whom service of process may be made were given, and none of course surrendered. in the state of New York. One Charles Oberg Nothing was done by means of which the is described in the defendant's circulars and equities between the members could be ad-time-tables, and in its list of "officers and justed. Nothing remained to be done. The agents," as its "general agent, passenger detransactions were on a cash basis. The pur-partment, 261 Broadway, New York;" and chasing money went into the hands of the of himself says he has charge "of the corretreasurer, with no other ceremony than at- spondence and business matters relating to tended a similar purchase, when, instead of carriage of passengers, but has nothing to do filling that character, he stood behind the with the freight department." The place same bar as a saloon-keeper. Liquor was described as "261 Broadway" is on a street purchased; liquor was paid for by money. corner. It has windows on Broadway and The occurrence was not exceptional, but the others on Warren street. They are inscribed members were dealt with on a cash basis; "Chicago & Alton Railroad;" "Freight and and, whether men or boys, received no other Passenger Agency, Chicago & Alton Railconsideration than is accorded to ready mon- road;" "Chicago & Alton Railroad Office." ey customers at a public bar. Whatever may These signs are several times repeated, and be the merit of the scheme prescribed by the plainly indicate that the office is a general oforganization, it has no effect here. It did fice for the transaction of general railroad not control or govern the parties. business in connection with the defendant's road; the carriage of passengers and freight constituting its entire business. The summons and complaint in this action were served on Oberg. The defendant moved to set aside the service of the summons and complaint "upon the ground that the person to whom the same was delivered was not a person upon whom any service is authorized by statute." The court at special term held the service to have been well made, and upon the proper person; saying: "Oberg was a manag

We are referred to the case of Com. v. Ewig, 145 Mass. 119, 13 N. E. Rep. 365, as an authority to sustain the defendant's appeal. In that case the defendant was convicted because the scheme on which he relied was deemed an evasion of the license law. We do not regard that question as before us, and, if there are observations in the course of the opinion of the learned court below at variance with those already expressed, we cannot yield to them. We put our decision upon the sole ground that the acts of the defend-ing agent, within the meaning of that term ant were as charged in the indictment, in violation of our law, and that upon the evidence he was rightfully convicted.

The judgment of the general term should therefore be reversed, the defendant's appeal dismissed, and the judgment of the court of sessions affirmed. All concur.

(115 N. Y. 437)

TUCHBAND v. CHICAGO & A. R. Co.1

(Court of Appeals of New York. Oct. 8, 1889.)

SERVICE OF SUMMONS.

as used in the Code;" but granted the motion for the reason that "it is not shown that the defendant now has, or at the time of the service had, any property within the state." Upon appeal, the general term reversed the order of the special term, and denied the motion; the learned court considering both questions. 5 N. Y. Supp. 493. It will be seen, therefore, that both courts agree that Oberg was, at the time of service, a managing agent also, that the corporation was shown to have of the corporation; the general term holding, property within the state.

Plaintiff's affidavit, in a suit against a foreign corporation, alleged that defendant had prop- The Code (section 432) provides "that pererty in the state, consisting of cars, office furni-sonal service of the summons upon a defendture, tickets, etc. One O. was described in de- ant, being a foreign corporation, must be fendant's list of "officers and agents" as its "gen-made by delivering a copy thereof" (1) "to eral agent, passenger department, 261 Broadway,

New York." The windows of 261 Broadway were the president, treasurer, or secretary; or, if inscribed with signs indicating that the office is the corporation lacks either of those officers, the general office for the general railroad business to the officer performing corresponding funcof defendant. Held, that it sufficiently appeared that defendant had property in the state, and that O. was its "managing agent," to allow service of summons upon him, under Code Civil Proc. N. Y. $432, permitting service on a foreign corporation, having property in the state, by leaving a copy of the summons with its "managing agent in the

state."

Appeal from supreme court, general term, first department.

tions under another name." (2) To a person designated for the purpose, in the manner therein prescribed. (3) If there is no such person as those named in the preceding subdivisions within the state, "and the corporation has property within the state, or the cause of action arose therein, to the cashier, or director, or a managing agent of the corporation within the state." It being conceded that the cause of action did not arise in this state, we are to inquire whether, DANFORTH, J. The plaintiff's cause of first, the corporation has property within this action arose in the state of Missouri. The state. As to that, there are positive aver defendant is a foreign corporation, and there ments in the plaintiff's papers, both general has been no designation by it of any person and specific,-general, that it has property has been no designation by it of any person within the state, and specific, pointing out office furniture, tickets, and other articles in

L. A. Gould, for appellant. Henry Schmitt, for respondent.

1Affirming 5 N. Y. Supp. 493.

concur.

(115 N. Y. 527)
RANDALL V. VAN WAGENEN et al.1
(Court of Appeals of New York. Oct. 8, 1889.)
ATTORNEY AND CLIENT-COMPENSATION-PLEAD-

ING.

settle and dismiss an action, plaintiffs' attorney 1. Where the parties plaintiff and defendant cannot sue them on the ground that the settlement was collusively made for the purpose of defrauding the attorney of his compensation. to a former action, in which the attorney was em2. An attorney in an action against the parties ployed, alleged the existence of a cause or action in favor of plaintiffs in the former action against defendant therein; a contract with plaintiffs by which the attorney was to have half the amount recovered as compensation for his services; and a further agreement by which the attorney was to hold the entire claim as collateral security for his compensation and other indebtedness of plaintiffs to him; and that the parties fraudulently and collusively, and without the knowledge or consent of the attorney, discontinued the action to defraud him of his compensation. Held, that the attor construed as founded on his right as assignee of doesney's complaint sounded in tort, and could not be plaintiffs' claim.

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

E. Countryman, for appellant. C. M.
Marsh, for respondents.

its office, and cars for transportation. Second, | that the legislature intended to confine the whether Oberg, within the meaning of the remedy to him alone. The order appealed Code, supra, was a managing agent. The from should be affirmed, with costs. All defendant, like other railroad corporations, necessarily has not only directors, a treasurer, and secretary, but other officers and agents. By these persons, or, under their direction, by others, the business of the company is conducted. From the very nature of a body corporate, service of process cannot be personal; and at common law it was made by serving it on a proper officer, so it might come to the knowledge of the company, and then proceeding by distress. 1 Tidd, Pr. 121. Under the statute supra the same object was in view; and where the corporation has an office in this state, where a substantial portion of its business is transacted by a person designated by itself as a general agent, al.hough followed by words indicating some one department, it may safely be assumed that the object of the statute will be accomplished. It, of course, intends a "managing agent" in this state; and, where a corporation created by the laws of any other state does business in this state, the person who, as its agent, does that business should be considered its managing agent; and more especially should that be so where the foreign corporation has an office or place of business in this state, and when that office is in charge of that person, and he there acts for the corporation. He is there doing business for it, and so manages ANDREWS, J. The suit of O'Neil and othits business. Such person is, in every sense ers against the defendant Van Wagenen was of the words used in the statute, "a managing settled and discontinued in 1877, by agreeagent." Corporations of this description ment between the parties, without the conhave become very numerous. They carry on sent of the attorney for the plaintiffs. The an extensive business in this state. They attorney subsequently brought this action may sue in our courts, and may be required against the parties to the former action, alto answer as defendants in the same tribu-leging the existence of a cause of action on nals; and, if they have notice to do so in the simple and summary manner prescribed by statute, the ends of justice will be attained. It was the duty of Oberg, the person served, to send the papers he received to his principal; and it was his declared intention to do So. It was in fact done, and the defendant appears, not to answer to the suit, but to complain of the insufficiency of service. We think the objection unavailing. The order in this case is not only directly sustained by the case of Palmer v. Pennsylvania Co., 35 Hun, 369, but is within the principle on which Hiller v. Railroad Co., 70 N. Y. 224, and Pope v. Manufacturing Co., 87 N. Y. 137, were decided. So far as the cases cited by the appellant hold a contrary doctrine, they cannot be approved. To limit service by requiring the person served, in case of an action against a railroad corporation, to be one who controls "the general and practical operations and business of running its road," would so restrict the meaning of the statute as to render it useless. Such an agent would naturally find his occupation and engagement in the state where the road was domiciled or operated; and, if his incidental presence in this state subjected him to process as representing the corporation, it cannot be supposed

contract in favor of the plaintiffs in the former action against the defendant therein for $10,799.35, and the bringing of an action thereon by him as attorney for the plaintiffs; an agreement between the plaintiffs in that action and their attorney to give him onehalf interest in the claim and in any recovery, as compensation for his services, and an ownership therein to that amount for such compensation; and a further agreement that the attorney should hold the entire claim as collateral security for his compensation, and for other indebtedness owing by the plaintiffs to the attorney; and that the plaintiffs made a parol assignment to the attorney of the entire claim for these purposes. complaint further alleges that the defendant Van Wagenen had notice in 1875 of the said agreement, and that the parties to the action fraudulently and collusively, and without the knowledge or consent of the attorney, settled and discontinued the action, to cheat and defraud the attorney of his interest and rights under the agreement. It is alleged that the claim was good and collectible, and that the attorney, by reason of such fraud, has lost the one-half interest in the claim, and also 1Affirming 22 Jones & S., 483.

The

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the sum of $2,350, owing by the O'Neils to | It would probably be a sufficient answer to him for professional services on other mat- this position that such a construction of the ters and proceedings; and the plaintiff de- complaint was not so far as appears claimed mands judgment against the defendants for on the trial. But a more satisfactory answer $10,000. The complaint was dismissed, and is that such was not in fact the nature of the we think properly. action. There is no contract between the O'Neils and Van Wagenen set out in the com

So far as the claim of the plaintiff is founded upon the lien which the law gives attor-plaint. It alleges by way of inducement neys for their services, there is no foundation merely that the O'Neils had a claim or defor the action. By the common law, an at- mand against Van Wagenen on contract, torney, by commencing a suit, acquires no amounting to $10,799.35, but what the conlien on the cause of action. The lien only tract was, whether the claim was for work, arises after judgment, and is a right to have labor, or services, or for money had or rethe judgment held for the debt, together with ceived, or goods sold, or upon what considerany security for the judgment, such as bail, ation the claim was founded, is not intimatuntil the lien is discharged, and, to the extent ed. The pleader evidently commenced his of the lien, payment by the defendant in the action on the theory that his cause of action judgment to the plaintiff after notice, to the was ex delicto, the gravamen being the fraudprejudice of the attorney, will be no dis- ulent and collusive settlement by which he charge. Pulver v. Harris, 52 N. Y. 73; Platt was prevented from prosecuting the action v. Jerome, 19 How. 384; Martin v. Hawks, to judgment, and thereby obtaining the fruit 15 Johns. 405; People v. New York C. P. 13 of his agreement with the O'Neils. AssumWend. 652. From the principle that there is ing that after the discontinuance of the origno lien until judgment it follows that it is inal action Randall could have brought a suit competent for the parties acting bona fide to as assignee on the contract between the settle and discontinue a suit before judgment, O'Neils and Van Wagenen, this was not without the consent of the attorney, and he such an action, and the plaintiff is not entiis remitted to his remedy against his client tled to any strained construction of his pleadfor his compensation. Pulver v. Harris, su-ing to relieve him from a position in which pra, and cases cited. But where such settle- he intentionally placed himself. The judgment is made collusively for the purpose of ment is right, and it should therefore be afdefrauding the attorney out of his costs, firmed. All concur. courts have been accustomed to intervene, and to protect the attorney by permitting him to proceed with the suit, and, if he is able to establish a right to recover on the cause of action as it originally stood, to per- (Court of Appeals of New York, Second Divis

(116 N. Y. 247)

EDDY et al. v. DAVIS.1

ion. Oct. 8, 1889.)

VENDOR AND VENDEE-CONTRACT-TENDER.

1. A provision in a contract for the sale of

shall, at his own expense, convey the land to the that, on the payment of a sum named, the vendor vendee, who shall execute a bond and mortgage for the remaining installments, is not a mere stipulation for the vendee's benefit, which he waives as provided, but is a covenant by the vendor, who by failing to pay and tender a bond and mortgage cannot, after the maturity of enough of the installments to aggregate the sum upon the payment of which the vendee would be entitled to a deed, maintain an action for such installments without first tendering a deed.

mit such recovery to the extent of his costs in the action. Coughlin v. Railroad Co., 71 N. Y. 443, and cases cited. And the court will set aside an order of discontinuance if it stands in the way. This is an adequate rem-land, the price being payable by installments, edy, and we think the exclusive remedy where the suit has been fraudulently settled by the parties before judgment to cheat the attorney out of his costs. We have found no case of an equitable action to enforce the inchoate right of an attorney under such circumstances, and no such precedent ought, we think, to be established. See Goodrich v. McDonald, 112 N. Y. 164, 19 N. E. Rep. 649; Talcott v. Bronson, 4 Paige, 503; Tullis v. Bushnell, 65 How. Pr. 465. This disposes of the action in this case so far as it seeks to enforce, by means of an independent and original suit, the equitable right of the plaintiff, sought to be defeated by the alleged fraudulent and collusive settlement.

The only other aspect of the action which gives it any color of foundation is presented by the allegation of an actual transfer to, and ownership by, the plaintiff of the cause of action embraced in the original litigation, of which the defendant Van Wagenen is alleged to have had notice, and which is to be assumed as the case stands. It is claimed that the action may be maintained as one brought by the plaintiff as assignee of the original debt owing by the O'Neils to Van Wagenen.

2. The tender of a deed, after the time fixed for the conveyance, is essential to the maintenance of an action for part of the purchase money, though some of the installments are not due.

3. It would not constitute a tender for the ven

dor to inform the vendee that he (the vendor) was ready and willing to perform the contract on his part if the vendee was ready to pay, when the vendor had, after the contract was made, disabled himself from complete performance by conveying away other land, over which he had agreed to give the vendee a right of way to the property sold.

4. An agreement by the vendor to "keep open a right of way back of" the property sold, which right of way was intended to be conveyed with the stitutes half their value, is part of the considerapremises, is necessary to their enjoyment, and contion; and, if the vendor conveys away the adjacent land without reserving the right of way, he cannot recover the purchase money.

1 Affirming 40 Hun, 637, mem.

manding a deed and tendering a bond and mortgage. Not having paid or made such demand or tender, and having waived his right to make any claim under this provision, as appears in the sixth finding of fact, the contract was to be treated as if it had been omitted, and, the action having been brought to recover installments due, no tender of a deed by the plaintiffs was necessary to enable them to maintain this action." The sixth finding of fact referred to was as follows: "That immediately before the commencement of this action the plaintiffs, by their attorney, applied to said defendant, and informed him that plaintiffs were ready and willing to perform said contract on their part, if he was ready to pay; to which defendant replied that he could not pay, and said he wanted to give up the property, and thereupon plaintiffs commenced this action."

Appeal from an order of the general term | hundred dollars and interest was for his [de of the third judicial department, which re- fendant's] benefit, and he could avail himself versed a judgment in favor of the plaintiffs of it at his option by paying such money at against the defendant, entered upon a decis- the times provided in the contract, and deion of the court at special term, and granted a new trial. The action was brought to recover from defendant unpaid installments upon a contract to purchase land. Plaintiffs agreed to sell to defendant a lot of land in the village of Westport, upon which there was a brick store, for the sum of $1,600, payable in annual installments varying from $100 to $200. The contract provided that possession should be given on payment of the first installment, and contained the following provisions: "The party of the second part [defendant] is to have one hundred feet depth of land, including the store, running east and west, running north and south the width of the store. The said parties of the first part agree that, on receiving the sum of eight hundred dollars at the time and manner above mentioned, they will execute and deliver to the said party of the second part, at their own proper cost and expense, a good and sufficient deed of said property, by the party of the second part giving to the parties of the first part a bond and mortgage on said property for the remaining sum unpaid. And the said party of the first part agrees to keep open a right of way back of said building. It is understood that the party of the second part is to put up during the coming year a building on the east end of said store to cost not less than six hundred dollars." Defendant paid the first installment under the contract, and entered into possession, and erected the building called for by the contract. He made other payments in amount about sufficient to pay the interest on the purchase money. At the time of the commencement of the action two installments, amounting to $300, were not due. At the time the agreement was made the plaintiffs owned other property adjoining the lot sold defendant on the north, and bounded on the west by the principal street of the village, and over this property access could be had from the street to the rear of defendant's lot. In June, 1875, plaintiffs sold to one Joseph Hutchings all the rest of the property owned by them without any reservation of a right of way to defendant's lot, and, at the time of the commencement of this action, they owned no property over which they could give a right of way to the rear of defendant's store.

It is undisputed that, within two months after the defendant entered into possession of the property, plaintiffs sold all their adjoining land, and thus put it out of their power to comply with their agreement with defendant, and keep open a right of way to the rear of his store; and at the time of the offer, mentioned in the finding of fact I have quoted, the plaintiffs were powerless to fulfill their agreement. The finding, therefore, that they were ready to perform, or that their offer and defendant's refusal constituted a waiver of tender of the deed, cannot be sustained. A tender imports not only readiness and ability to perform, but actual production of the thing to be delivered. The formal requisite of a tender may be waived, but to establish a waiver there must be an existing capacity to perform. Nelson v. Elevating Co., 55 N. Y. 484; Lawrence v. Miller, 86 N. Y. 137; Bigler v. Morgan, 77 N. Y. 318. Here there was no existing capacity, as, having sold all their adjacent lands, plaintiffs could not perform their covenant "to keep open a right of way" back of defendant's store. The conclusion of a waiver is not therefore sustained. If, however, the construction put upon the contract by the learned trial court in the conclusion of law I have quoted is correct, then the finding of a waiver of tender of performance is unimportant. Never having paid $800 of the purchase money, defendant was not in a position to demand the conveyance, and there being in the contract, as construed by the trial court, no covenant on the part of the plaintiffs to deliver the deed until the full conBROWN, J., (after stating the facts as sideration was paid, tender of the conveyabove.) The trial court found as conclusions ance as a condition precedent to recover for of law that the defendant "was not entitled unpaid installments was not necessary, and to a conveyance of property, or of such right no question as to the sufficiency of the facts to of way, until the full sum of sixteen hun- constitute a waiver of tender could legitidred dollars, the consideration provided by mately arise. Where a contract for the sale said contract, was paid; and that the provis- of land provides for partial payments of the ion in said contract for deeding the premises purchase money prior to the delivery of the to the defendant upon the payment of eight deed, the vendor may sue for such install

Richard L. Hand, for appellants. Chester McLaughlin, for respondent.

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