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frauds and perjuries, in order to set aside a conveyance on the ground that it was made to hinder and delay creditors, it must appear that both parties participated in the fraud, and that the conveyance may have the effect to delay and hinder the creditors does not of itself bring a case within the statute. Ewing v. Runkle, 20 Ill. 449; Hessing v. McCloskey, 37 Ill. 341. It is clear from the evidence in this case that at the time of the conveyance to Rice, and by him back to the daughter, as between William A. Steidley and his wife, it was equitable and just that the title should be placed in her. At that time there were no liens of his creditors against the land, and, she having obtained the legal title without any intent or purpose to defraud or delay creditors, her title is legal, and in no proper sense, under the statute of frauds, hinders or delays her husband's creditors. Earl v. Earl, 186 Ill. 370, 57 N. E. 1079; Insurance Co. v. Bartlett, 188 Ill. 165, 58 N. E. 1075.

Cases cited by counsel for the appellant where a husband has conveyed his own property with intent to defraud his creditors, or where creditors have obtained a lien upon the property while in the name of the husband, and cases in which the wife has permitted her husband to invest her separate property in his own business, or has permitted him to sell and exchange it for other property, changing its character as he may see fit, are clearly distinguishable from this case, as is shown by the authorities already cited.

We are clearly of the opinion that the decree of the court below is in conformity with the decisions of this court, and it will be affirmed. Decree affirmed.

(159 Ind. 614)

NAPPANEE CANNING CO. et al. v. REID, MURDOCK & CO. et al.

(Supreme Court of Indiana. Oct. 8, 1902.) Dissenting opinion. For majority opinion, see 64 N. E. 870.

HADLEY, J. It is conceded that this court has adopted the rule that a corporation, while prosecuting its corporate business, though with liabilities greater than assets, may prefer its creditors, as may a natural person, and that such preference may extend to an officer or director of the corporation, when conferred by the vote of a disinterested majority of the board of directors. I am impressed, however, after a thoughtful consideration of the subject, that the rule has been already carried in this state as far as reason and judicial precedent will warrant, and, in so far as it is held in the majority opinion in the case at bar that the directors of an insolvent corporation, in contemplation of its early dissolution, may appropriate the entire assets of the corporation to the exclusive security of their own preexisting personal liabilities, I am unable to

agree with my Brethren, and am constrained to enter my earnest protest. The holding is a step in advance of any previous ruling of this court, is forbidden by the decided weight of authority, as I shall endeavor to show, and invests corporate directors with such temptations and powers for mischief and moral wrong that, if no other existed, it should be denied on the ground of public policy. In support of this view, I am not driven to what is commonly called the "trust-fund doctrine," that is, to a line of decision to the effect that upon insolvency equity seizes the assets of a corporation for equal distribution to the creditors, and no preference can be given to any one. This latter doctrine has been repudiated in this and in most other states of the Union to the extent of recognizing the right of insolvent corporations to prefer their common, unofficial creditors to the same extent, and by the same modes, that an insolvent individual may prefer his. But as to official or director creditors, it is quite as generally held that their position as managing agents gives them such an unequal and unfair advantage over other creditors that they will not be permitted by courts of chancery to profit by their superior knowledge and position in a race of diligence. The position occupied by directors is one of trust, call it what you may. They receive the property of others, act for others, and are accountable to others. They are bound to devote the property intrusted to them exclusively to the purposes of the corporation. Any departure in this is a misappropriation, for which they are answerable to the stockholders or the creditors. The assets not being their own, they hold and administer them primarily for the benefit of the stockholders, secondarily for the use of those who may by contract or operation of law succeed to the interests of the stockholders. While the corporation is solvent, the active fiduciary relation is between the directors and the stockholders, who are the real parties in interest. When insolvency occurs, the stockholders, while retaining the legal title, by force of law part with all beneficial interest in the assets, and the same is transferred to the creditors. The possession and control of the directors being unchanged by the advent of insolvency, they thereafter necessarily hold the property, not for themselves, but in trust for the creditors, who now have the exclusive interest. It at once becomes their duty to apply the assets to the payment of the debts, not necessarily pro rata, because the creditors have Lo mutual relation among themselves; but they hold the assets in trust for application to the debts, either pro rata or preferentially, as they themselves deem the merits of the creditors to be. The directors, being the corporation for the purpose of judging among the creditors, cannot select themselves from among the creditors for preference, because they cannot be both judges and creditors at the same time. It seems absurd to say that

the same persons may constitute different identities of themselves, so that, as directors of a corporation, they may convey, or mortgage, or contract with themselves as private persons. The relation of debtor and creditor implies antagonism, a countervailing interest of distinct and independent parties. The interests of self-preferring creditors are co-operative and the same. The more anxious as a creditor to obtain the preference, the more willing and ready as a debtor to grant it. This puts the director in a situation wholly incompatible with his duty to serve all stockholders and creditors fairly and alike. While not a trustee in a technical sense, there can be no doubt that he occupies such a fiduciary position towards the stockholders and directors as calls for a faithful performance of duty, and conduct entirely free from any use of his position to advance his personal interests beyond those of others of equal merit. We have many American decisions in support of this view, from the more recent of which in the several states, though often not the best considered, I briefly quote: "It seems to be well settled that directors of an insolvent corporation, who are creditors of the company, cannot secure to themselves any preference or advantage over other creditors in the payment of their claims." Bonney v. Tilley, 109 Cal. 346, 42 Pac. 439, quoted approvingly in Bank v. Ivett, 127 Cal. 134, 59 Pac. 393, decided December 11, 1899. "It is not good morals, or good law." Fishel v. Goddard (Colo. Sup. July 5, 1902) 69 Pac. 607, 612. "We think it very clear, therefore, that when the validity of these mortgages, to secure debts upon which the directors were indorsers, was questioned by other creditors of the corporation, they should have been classed as instruments rendered void by the legal principle which prevents directors of an insolvent corporation from giving themselves a preference over outside creditors." Atlas Tack Co. v. Exchange Bank (Aug. 7, 1900) 111 Ga. 703, 710, 36 S. E. 939. "The law is, however, that an insolvent corporation cannot prefer a creditor who at the time is a director therein." Rockford Wholesale Grocery Co. v. Standard Grocery & Meat Co. (Oct. 24, 1898) 175 Ill. 89, 51 N. E. 642, 67 Am. St. Rep. 205. "In Hays v. Bank, 51 Kan. 535, 33 Pac. 318, it was held that the directors and managers of a corporation, who were creditors of the same, could not prefer themselves, leaving the question undecided as to whether other creditors might be preferred. The ground of that decision is that the directors are agents of the stockholders and creditors, and that their interests as credors would be inimical to their duties as agents. They occupy a fiduciary relation to the creditors and stockholders, and may not take advantage of their superior information and opportunity to gain an advantage over those whose interests they are guarding; nor are they permitted to contract with themselves as they may with third parties." Plow

Co. v. Rude Bros. Mfg. Co., 60 Kan. 145, 150, 55 Pac. 848. "Officers of a corporation, who are also its creditors, cannot lawfully pay their own claims in preference to other creditors when the corporation is insolvent." Headnote 2, Clark Co. v. Colton (1900) 91 Md. 195, 46 Atl. 386, 49 L. R. A. 698. "The directors of an insolvent corporation, being its creditors, cannot take advantage of their fiduciary relation, and deal directly with themselves, to the injury of others in equal right. If they do, equity will set aside the transaction at the suit of creditors of the corporation or their representatives, without reference to the question of any actual fraudulent intent on the part of the directors; for the right of the creditors does not depend upon fraud in fact, but upon the violation of the fiduciary relation of the directors." Taylor v. Fanning (Minn., July 3, 1902) 91 N. W. 269. "At common law a debtor may prefer a creditor to the exclusion of others, but a different rule prevails when the creditor is a director of an insolvent corporation debtor. The directors in such case are not strictly trustees for the general creditors, though sometimes so called, but they owe them a duty which is inconsistent with the taking of a security for prior indebtedness to their detriment." Symonds v. Lewis (1901) 94 Me. 501, 48 Atl. 121. "The corporation was plainly insolvent, not a going concern, nor one with any prospect of going on at any time in the future. It could not, in such condition, prefer its directors, secretary, and treasurer." King v. Wooldridge (Oct. 29, 1900) 78 Miss. 179, 28 South. 824. "The proposition that an insolvent corporation cannot prefer a debt on which its officers and directors are bound as trustees is now thoroughly established in this state." Williams v. Turner (Neb., Jan. 8, 1902) 88 N. W. 668. "The law will not allow the stockholders and officers of a corporation to take advantage of their knowledge of the insolvent condition of the concern, and their power to use and control the assets to repay their own debts, or to relieve them from special liabilities to the injury of other creditors." Graham v. Carr (May 6, 1902) 130 N. C. 271, 41 S. E. 379. "The law applicable to these cases is extremely clear. While directors of corporations are not trustees in a technical sense, there is yet no doubt that they occupy a fiduciary position towards stockholders and creditors of the corporation, and that they come within the designation of persons filling a fiduciary relationship. In fact, they hold a position of the highest trust, and will, therefore, be required to execute it with the utmost fidelity. This being so, it is plain that the defendants could not use their official position to advance their individual interests. But this is precisely what they did with actual knowledge that the corporation was insolvent." Smith v. Putnam (1882) 61 N. H. 632. "The receiver of an insolvent corporation may recover its assets, withdrawn,

after it has become insolvent, in order to secure some of its directors against a liability incurred for the corporation. A preference of that character cannot stand, although at the time it is given there is no statutory prohibition against it." Headnote, Taylor v. Gray (Nov. 22, 1899) 59 N. J. Eq. 621, 44 Atl. 668. "It is the settled law of this commonwealth that an insolvent debtor, whether corporation or individual, may prefer bona fide creditors. But if the creditor benefited be a director, or other officer possessed of corporate power and corporate knowledge of the insolvency of his corporation, then he has an advantage over other creditors whose claims may be of equal merit. He has knowledge that his debt is in peril, and has the power to prefer himself. As he is, in a sense, trustee for all the stockholders and creditors, equity forbids that he should act solely for himself, regardless of the interests of those for whom he is trustee." Mueller v. Clay Co. (1898) 183 Pa. 450, 458, 38 Atl. 1009. "The directors of an insolvent corporation are, by virtue of their position, debarred from preferring debts of the corporation due to themselves." Olney v. Land Co. (Aug. 10, 1889) 16 R. I. 597, 18 Atl. 181, 5 L. R. A. 361, 27 Am. St. Rep. 767. "When a corporation is insolvent, and has ceased to be a going concern, and its officers know or ought to know that the suspension is impending, then such officers are so far trustees that they may not transfer corporate property to themselves in payment of debts due them, and that such a transaction constitutes a fraud in law." Slack v. Bank (April 25, 1899) 103 Wis. 57, 64, 79 N. W. 51, 74 Am. St. Rep. 841. Of same import, see Burnham, Hanna, Munger & Co. v. McCormick (Oct. 22, 1898) 18 Utah, 42,55 Pac. 77. To the same effect, see Harding v. Hart (Jan. 7, 1902) 51 C. C. A. 264, 113 Fed. 304, 342; Kittel v. Railroad Co. (C. C., Feb. 22, 1897) 78 Fed. 855; Northwestern Mut. Life Ins. Co. v. Cotton Exchange Real Estate Co. (C. C., Oct. 21, 1895) 70 Fed. 155; Bosworth v. Bank (Nov. 27, 1894) 12 C. C. A. 331, 64 Fed. 615; Manufacturing Co. v. Hutchinson (Oct. 1, 1894) 11 C. C. A. 320, 63 Fed. 496; Consolidated Tank Line Co. v. Kansas City Varnish Co. (C. C., Sept. 5, 1890) 43 Fed. 204.

It is not clear how Sanford Fork & Tool Co. v. Howe, Brown & Co., 157 U. S. 312, 15 Sup. Ct. 621, 39 L. Ed. 713, lends any support to the proposition that directors, or a majority of the board of directors, may prefer themselves by appropriating all the corporate assets on pre-existing liabilities, after they have determined that the corporation is hopelessly insolvent, and will in a few days abandon its corporate business. In that case Justice Brewer rests the court's ruling upon the fact that the stockholders expressly, by vote, authorized the mortgage, and that at the time it was executed the corporation was a going concern, and intended to continue in business, and in fact did con

tinue, and paid out $30,000 on its obligations, other than those secured, in the usual course of business; and it was also at the time believed by all parties to be solvent, and was in fact solvent, if the assets were worth as much as they cost. The trend of the decision is indicated by the following sentence: "It is often said that directors may not take advantage of their position and power to secure personal advantage to themselves, but that proposition has no application here, for the corporation itself directed the mortgage." Page 317, 157 U. S., and page 623, 15 Sup. Ct., 39 L. Ed. 713. To the same effect, see, also, the following text-writers: 2 Cook, Corp. § 692; Elliott, Corp. § 189; Field, Corp. 8174; Reese, Ultra Vires, § 155; 2 Spell. Priv. Corp. § 713; Tayl. Priv. Corp. § 759; 5 Thomp. Corp. § 6503; 7 Thomp. Corp. $ 8496; Mor. Priv. Corp. § 787; 3 Clark & M. Priv. Corp. p. 2414. Arkansas, Ohio, Massachusetts, New York, and a number of other states have statutes restricting the right of insolvents to prefer any creditor. Tennessee, Texas, Washington, South Dakota, and perhaps some other states, seem to adhere to the trust-fund doctrine. It has always been the rule that the holder of a secret equity shall not assert it to the injury of one who has been innocently misled thereby, and in what way is the principle different when the directing agents of an insolvent corporation, with that full knowledge of the financial condition of the concern the law requires them to have, continue to conduct the business, keep the public records fair, invite public confidence, solicit the people to deal with them, and thus go on under cover, speculating on the capital fund of the association. until it has been wasted to a point that will only secure their personal liabilities, and then, under claim of acting for the corporation, deliver to themselves, as creditors, all that is left of the assets? I am mistaken if the deception of the one is not as culpable as the other, and if the conduct of the latter does not violate the principles of common honesty.

MEMORANDUM DECISIONS.

ADAMS et al., Respondents, v. ELWOOD, Appellant. (Court of Appeals of New York. Oct. 14, 1902.) Motion to dismiss an appeal from a judgment of the appellate division of the supreme court in the Second judicial department, entered June 4, 1902 (72 App. Div. 632, 76 N. Y. Supp. 1008), affirming a judgment in favor of plaintiffs entered upon the report of a referee. The motion was made upon the grounds that the appellate division had unanimously decided that the findings of fact were warranted by the evidence, and that there were no other questions of law to be reviewed; also, that the appellant had failed to file a proper undertaking. R. J. Shadbolt, for the motion. William L. Mathot, opposed. No opinion. Motion denied, with $10 costs.

ALBANY EXCH. SAV. BANK v. BRASS et al. (Court of Appeals of New York. June 27, 1902.) Edwin Countryman, P. E. Du Bois, and R. W. Brass, for appellants. William L. Learned and A. V. De Witt, for respondent.

PER CURIAM. Judgment (59 App. Div. 370, 69 N. Y. Supp. 391) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, MARTIN, VANN, and CULLEN, JJ., concur.

AMBERG et al., Appellants. v. MANHATTAN LIFE INS. CO. OF NEW YORK, Respondent. (Court of Appeals of New York. June 17, 1902.) No opinion. Motion for reargument denied, without costs. See 171 N. Y. 314, 63 N. E. 1111.

ARENTS V. LONG ISLAND R. CO. (Court of Appeals of New York. May 29, 1902.) Motion to dismiss an appeal from au order of the appellate division of the supreme court in the Second judicial department, entered January 31, 1899 (36 App. Div. 379, 55 N. Y. Supp. 401), which reversed an order of special term denying defendant's motion to set aside several judgments entered in the action in favor of plaintiff's attorney. The motion was made upon the ground that the appellant had died since taking the appeal and that no steps had been taken toward substituting any one in his place. William J. Kelly, for the motion. No opinion. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

In re ARKENBURGH et al. (Court of Appeals of New York. June 27, 1902.) Charles Edward Souther, for appellants. John F. McFarlane, Arthur S. Tompkins, and Robert F. Little, for respondents.

PER CURIAM. Order (69 App. Div. 618, 74 N. Y. Supp. 1014) affirmed, with costs.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, VANN, CULLEN, and WERNER, JJ., concur.

In re BAKER. (Court of Appeals of New York. Oct. 21, 1902.) C. H. Sturges, for appellant. James C. Rogers, for respondents.

PER CURIAM. Order (72 App. Div. 211, 76 N. Y. Supp. 61) affirmed, with costs to the respondents payable out of the estate.

PARKER, C. J., and O'BRIEN, BARTLETT, HAIGHT, VANN, CULLEN, and WERNER, JJ., concur.

BALDWIN, Respondent, v. ABRAHAM et al., Appellants. (Court of Appeals of New York. June 17, 1902.) William J. Carr, Edward M. Grout, and Paul Grout, for appellants. James C. Cropsey, for respondent.

PER CURIAM. Judgment (57 App. Div. 67, 67 N. Y. Supp. 1079) affirmed, with costs, on authority of Howard v. Ludwig, 171 N. Y. 507, 64 N. E. 172.

PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, MARTIN, and VANN, JJ., concur.

BATES, Respondent, v. LUDWIG et al., Appellants. (Court of Appeals of New York. June 17, 1902.) Louis Marshall, Samuel H. Guggenheimer, and William Strauss, for ap

pellants. Harold Nathan and Edgar M. Leventritt, for respondent.

PER CURIAM. Judgment (62 App. Div. 617, 71 N. Y. Supp. 1132) affirmed, with costs, on authority of Howard v. Ludwig, 171 N. Y. 507, 64 N. E. 172.

PARKER, C. J., and GRAY, O'BRIEN,

BARTLETT, HAIGHT, MARTIN, and VANN, JJ., concur.

BINZEN, Respondent, v. EPSTEIN et al., Appellants. (Court of Appeals of New York. Oct. 7. 1902.) H.H. Snedeker, for_appellants. Charles F. Brown and Frank Schaeffler, for respondent.

PER CURIAM. Judgment (58 App. Div. 304, 69 N. Y. Supp. 789) affirmed, with costs. PARKER, C. J., and O'BRIEN, BARTLETT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur.

In re BLACKSTONE'S ESTATE. (Court of Appeals of New York. June 24, 1902.) Edward W. Sheldon, for appellant. Julius Offenbach and Thomas Penney, for respondeuts.

PER CURIAM. Order (69 App. Div. 127, 74 N. Y. Supp. 508) affirmed, with costs, on the ground that this case is controlled by In re Houdayer's Estate, 150 N. Y. 37, 44 N. E. 718, 34 L. R. A. 235, 55 Am. St. Rep. 642. Motions to dismiss appeal and to correct record denied, without costs.

PARKER, C. J., and GRAY, HAIGHT, VANN, CULLEN, and WERNER, JJ., concur. O'BRIEN, J., dissents.

BLOOMINGTON MIN. CO., Respondent, v. BROOKLYN HYGIENIC ICE CO., Appellant. (Court of Appeals of New York. June 10, 1902.) L. Laflin Kellogg and Alfred C. Petté, for appellaut. Franklin D. Peale, for respondent.

PER CURIAM. Judgment (58 App. Div. 66, 68 N. Y. Supp. 699) affirmed, with costs. PARKER, C. J., and GRAY, HAIGHT, MARTIN, VANN, CULLEN, and WERNER, JJ.. concur.

BOYLE & EVERTS CO., Respondent, v. FOX et al., Appellants. (Court of Appeals of New York. Oct. 14, 1902.) Motion to dismiss an appeal from a judgment of the appellate division of the supreme court in the First judicial department, entered June 2, 1902 (72 App. Div. 617, 76 N. Y. Supp. 102), affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term. The motion was made upon the ground that there was no question of law involved in the appeal, and that the court of appeals had, therefore, no jurisdiction to entertain the same. Milton Mayer, for the motion. Joseph A. Farley, opposed. No opinion. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

BREED et al., Appellants, v. RUOFF et al., Respondents. (Court of Appeals of New York. June 27, 1902.) G. D. B. Hasbrouck and Russel S. Johnson, for appellants. Thaddeus D. Kenueson, for respondents.

PER CURIAM. Appeal dismissed, with costs. See 69 App. Div. 620, 75 N. Y. Supp. 1122.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, VANN, CULLEN, and WERNER, JJ., concur.

BREWER, Respondent, GILMORE, Appellant. (Court of Appeals of New York. Oct. 7, 1902.) John A. Delehanty, for appellant. Robert Averill, for respondent.

PER CURIAM. Judgment (57 App. Div. 637, 68 N. Y. Supp. 1134) affirmed, with costs. PARKER, C. J., and O'BRIEN. BARTLETT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur.

BROWN, Respondent,

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opinion delivered on previous appeal. 162 N. Y. 163, 56 N. E. 521, 48 L. R. A. 107.

PARKER, C. J., and GRAY, HAIGHT, MARTIN, VANN, CULLEN. and WERNER. JJ., concur.

In re BULLIS. (Court of Appeals of New York. June 27, 1902.) Adelbert Moot and Charles S. Cary, for appellant. C. Walter Artz, Frederic W. Frost, and Frank Sullivan Smith, for respondent.

PER CURIAM. Order (68 App. Div. 508, 73 N. Y. Supp. 1047) affirmed, with costs. GRAY, O'BRIEN, HAIGHT, VANN, CUL

TAN ST. RY. CO., Appellant. (Court of Appeals of New York. June 27, 1902.) Charles F. Brown, Frank A. Irish, and Henry A. Rob-LEN, and WERNER, JJ., concur. PARKER, inson, for appellant. Gormly J. Sproull and Thomas Sproull, for respondent.

PER CURIAM. Judgment (60 App. Div. 184, 70 N. Y. Supp. 40) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, MARTIN, VANN, and CULLEN, JJ., concur.

In re BRUSH. (Court of Appeals of New York. June 27, 1902.) Roger M. Sherman, for appellaut. William N. Ďykman, William A. Ferguson and Charles W. Sinnott, for respondent.

PER CURIAM. Order (72 App. Div. 630, 76 N. Y. Supp. 597) affirmed with costs.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, VANN, CULLEN, and WERNER, JJ., concur.

In re BRUSH. (Court of Appeals of New York. June 27, 1902.) Roger M. Sherman, for appellant. William N. Dykman, William A. Ferguson, and Charles W. Sinnott, for respondent.

PER CURIAM. Order (72 App. Div. 630, 76 N. Y. Supp. 1010) affirmed, with costs.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, VANN, CULLEN, and WERNER, JJ., concur.

In re BRUSH. (Court of Appeals of New York. June 27, 1902.) William N. Dykman, William A. Ferguson, and Charles W. Sinnott, for Edwin W. Fiske. Roger M. Sherman, for Edward F. Brush.

PER CURIAM. Order (76 N. Y. Supp. 1010) affirmed, without costs.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, VANN, CULLEN, and WERNER, JJ., concur.

In re BRUSH. (Court of Appeals of New York. June 27, 1902.) Roger M. Sherman, for appellant. William N. Dykman, William A. Ferguson, and Charles W. Sinnott, for respondents.

PER CURIAM. Order (74 App. Div. 625, 77 N. Y. Supp. 1122) affirmed, with costs.

PARKER, C. J., and O'BRIEN, BARTLETT. MARTIN, VANN, CULLEN, and WERNER, JJ., concur.

BUFFALO GERMAN INS. CO., Respondent, v. THIRD NAT. BANK OF BUFFALO, Appellant. (Court of Appeals of New York. June 10, 1902.) George L. Lewis, for appellant. Arthur W. Hickman, for respondent.

PER CURIAM. Judgment (61 App. Div. 612, 69 N. Y. Supp. 1129) affirmed, with costs, on

C. J., not voting.

CASSIDY, Respondent, v. UHLMANN, Appellant, et al. (Court of Appeals of New York. May 27, 1902.) No opinion. Motion for reargument denied, with $10 costs. See 170 N. Y. 505, 63 N. E. 554.

Oct.

OITY OF ROCHESTER, Respondent, ROCHESTER BILL POSTING CO., Appellant. (Court of Appeals of New York. 14, 1902.) Motion to dismiss an appeal from a judgment of the appellate division of the supreme court in the Fourth judicial department, made at the March term, 1902 (70 App. Div. 623, 75 N. Y. Supp. 1122), affirming a judg ment in favor of plaintiff entered upon a decision of the court at special term. The motion was made upon the ground that the return on appeal had not been filed. William A. Sutherland, for the motion. No opinion. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

CITY TRUST, SAFE DEPOSIT & SURETY CO. OF PHILADELPHIA, Respondent, v. FIDELITY & CASUALTY CO. OF NEW YORK, Appellant. (Court of Appeals of New York. June 10. 1902.) Charles C. Nadal, for appellant. William S. Ray and Frederick J. Swift, for respondent.

PER CURIAM. Judgment (58 App. Div. 18, 68 N. Y. Supp. 601) affirmed, with costs.

PARKER, C. J., and BARTLETT, HAIGHT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur.

CLARK, Respondent, v. BIRD, Appellant. (Court of Appeals of New York. June 27, 1902.) Motion to dismiss an appeal from judgment of the appellate division of the supreme court in the Fourth judicial department, entered November 20, 1901, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an equity term. The motion was made on the grounds that no questions of law were involved in the appeal and that the judgment was not appealable to the court of appeals. Frank J. Hone, for the motion. W. A. Sutherland, opposed. No opinion. Motion granted, and appeal dismissed, with See 66 App. Div. 284, 72 N. Y. Supp.

costs. 769.

CONDE, Respondent, v. LEE, Appellant. (Court of Appeals of New York. May 29, 1902.) Charles S. Kent, for appellant. Frank Hopkins, for respondent.

PER CURIAM. Judgment (55 App. Div. 401, 67 N. Y. Supp. 157) affirmed, with costs.

PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, MARTIN, and VANN, JJ., concur.

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