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except for the unjustifiable methods, savoring purpose of parading these witnesses before too much of pettifoggery, employed by the as- the jury was to create the impression that sistant district attorney who tried the case, the defendant had been engaged in fraudufor the purpose of producing on the minds lent schemes similar to the one charged of the jury the impression that defendant against him in this case, and to challenge had been guilty of various misdeeds, when him before the jury, either by his own tesas a matter of fact the evidence did not timony or by a cross-examination of the justify any such inference. As has been witnesses referred to, to go into the details stated, the charge against the appellant is of those transactions. As it was conducted, that he procured money from the complain- it was an entirely unjustifiable proceeding. ant by false representations in connection The evidence as it was actually produced did with his claim that he could synthetically not show that the appellant had been guilty produce camphor from spirits of turpentine. of any dishonest conduct, and there was The case was very closely contested on the facts, and if the people could convince the jury that the appellant was in the habit of obtaining money from people by virtue of dishonest schemes of this nature, it can readily be seen that this would substantially influence the jury in their final conclusion. The attempt was made to produce this impression by improper methods.

nothing in the answers which he did give which called for further testimony or explanation by him. On this theory the evidence at best would be utterly immaterial and inadmissible, and under the circumstances I have no doubt that it was worse than immaterial. The entire series of questions as they were framed, his admissions that he had received certain sums of money, and the While he was being cross-examined, the presence of the individuals from whom it appellant was asked whether he had not was insinuated by the district attorney's entered into an arrangement with one Weir questions he had improperly collected money, to manufacture rubber synthetically, and inevitably must have combined to produce he answered that he had. Then he was in the minds of the jury the conclusion that asked whether he had not represented that appellant had been guilty of misconduct. He he could produce rubber synthetically for was forced to submit his case to the jury, him, and pursuant to that representation either under this false impression thus imhad secured several thousand dollars. This properly created, or else enter on the trial question he answered in the negative, but, of issues involving foreign transactions which being asked further, did admit that on such had no part in the trial. Either burden was a representation he had procured money one which the court had no right to impose from Weir to the amount of about $800, and upon him. While, of course, the court has then, being asked whether he had ever the power to allow much latitude in the returned that money to him, he responded cross-examination of a witness, and while in the negative. Next he was asked wheth- the district attorney many times may be led er he did not represent to one McKinley in good faith and legitimately to enter upthat he could manufacture rubber syntheti on a cross-examination of a witness which cally, and under that representation procure proves fruitless and discloses no circumstancfrom him an amount in the neighborhood of es impeaching his credibility, there must be $20,000. He answered this in the negative, a limit to these practices. One of these but did admit that upon such representation he had procured some money from Mr. McKinley. He was then asked whether he had not represented to one Lockhurst falsely that he had a plant equipped for the manufacture of a patented device, by virtue of which representation he procured several thousand dollars, and he answered in the negative. Finally he was asked whether he had not procured money from one Jarvis by GRAY, J. (dissenting). I dissent, for the representation of ability to manufacture rub- reason that a reversal of the judgment of ber synthetically, and responded in the neg- conviction upon the errors alleged is not ative. Subsequently Jarvis and Lockhurst justified. They were neither serious nor were called to the stand by the prosecution, prejudicial. The course of the district atand, after being asked trivial questions, al- torney, in asking the unnecessary questions lowed to depart. Weir had been called to alluded to in the opinion, may well have the stand before this cross-examination and been open to censure; but that the evidence asked questions of a similar character, and could prejudice the defendant's case is ineach of the witnesses stated that he knew credible. As to three of the four cases where the defendant, and two of them that they these questions were asked, they contained had met him during the period covered by no suggestion of false representations by the questions making up the cross-examina-] the defendant in obtaining the money for his tion heretofore referred to.

It is perfectly apparent that the only ob

limits should be that a district attorney shall
not deliberately, by questions really contain-
ing no element of misconduct, and by parad-
ing witnesses as a challenge to the defend-
ant, create false impressions that he has
been guilty of misdeeds, when the evidence

does not sustain any such conclusion.
versed, and a new trial granted.
The judgment of conviction should be re-

chemical productions. As to the other case, where they did enter into the question, the

The verdict of the jury was abundantly | Beard Dredging Company necessary parties sustained by the proofs, and the Appellate defendant in this action, without obtaining Division justices have unanimously affirmed judgment against the corporation? the judgment upon their review of the trial. I think it is going too far for this court to hold that it should be now reversed for the reasons assigned.

CULLEN, C. J., and VANN, WERNER, WILLARD BARTLETT, and CHASE, JJ., concur with HISCOCK, J. GRAY, J., reads dissenting opinion.

Judgment of conviction reversed, etc.

ATLANTIC DREDGING CO. v. BEARD et al.

(Court of Appeals of New York. Nov. 3,
1911.)

CORPORATIONS (§ 619*) - DISSOLUTION - LIA-
BILITY OF DIRECTORS-ACTIONS-PARTIES.

Under a statute providing that on the dissolution of a corporation its assets shall be subject to its debts under the direction of the directors then in office, who may do all lawful acts necessary for collecting the debts due to the corporation, converting the property into money, and distributing the assets, the directors in office at the time of the dissolution of a corporation are authorized to collect the assets, pay the liabilities, and distribute the surplus, and in discharging such duty they represent the corporation and stockholders, and in an action to compel them to discharge their duty neither the corporation nor the stockholders are necessary parties.

[Ed. Note.-For other cases, see Corporations, Dec. Dig. § 619.*]

(4) Have the causes of action been improperly united in the complaint?

The complaint alleges four different causes of action, arising out of the rent of a scow, for work, labor, and services in dredging at different times, at the instance and request of the W. H. Beard Dredging Company, in and about the harbor of the city of New York, and for dumping the material dredged. The plaintiff is a domestic corporation, having its principal office and place of business in the borough of Manhattan. The William H. Beard Dredging Company is a foreign corporation, created under the laws of the state of West Virginia, but having an office for the transaction of its business in the borough of Manhattan in the city of New York. The defendants William Beard, Lavinia Beard, and John B. Summerfield were the directors of the William H. Beard Dredging Company, and the defendants William Beard and Lavinia Beard were copartners composing the firm of William Beard & Co.

After the performance by the plaintiff of the work, labor, and services for the William H. Beard Dredging Company, alleged in the complaint, the William H. Beard Dredging Company dissolved and discontinued business as a corporation, and surrendered to the state of West Virginia its charter and corporate franchise, and duly authorized its existing board of directors, who

Appeal from Supreme Court, Appellate Di- were the defendants William Beard, Lavinia vision, First Department.

Action by the Atlantic Dredging Company against William Beard and others, as directors of the W. H. Beard Dredging Company, and others, composing the firm of William Beard & Co. From an order of the Appellate Division (130 N. Y. Supp. 4), affirming an order granting a motion for judgment on the pleadings for plaintiff, defendants appeal, by permission, on certified questions. Affirmed, and questions answered.

See, also, 130 N. Y. Supp. 1104. Ralph James M. Bullowa, for appellants. Walter L. McCorkle, for respondent.

HAIGHT, J. The defendants had demurred to the complaint, and the granting of a motion for judgment, in effect, overruled the demurrer. The questions certified for our determination are as follows:

Beard, and John B. Summerfield, to proceed to pay off and discharge its debts, liabilities, and obligations, and to transfer and set over to William Beard and Lavinia Beard, composing the firm of William Beard & Co., the whole of the property belonging to the corporation. This was done under the law of West Virginia, which is set forth in the plaintiff's complaint, with the provision that "when a corporation shall expire or be dissolved, its property and assets shall, under the order and direction of the board of directors then in office, or the receiver or receivers appointed for the purpose by such circuit court as is mentioned in the fiftyseventh section of this chapter, be subject to the payment of the liabilities of the corporation, and the expenses of winding up its affairs; and the surplus, if any, then remaining, to the distribution among the stock

(1) Does the complaint state facts suffi- holders according to their respective intercient to constitute causes of action?

(2) Upon the facts alleged in the complaint and before obtaining judgment against the corporation, is the corporation a necessary party defendant?

(3) Upon the facts alleged in the complaint, are the stockholders of the W. H.

ests. And suits may be brought, continued or defended, the property, real or personal of the corporation, be conveyed or transferred under the common seal or otherwise, and all lawful acts be done, in the corporate name, in like manner and with like effect as before such dissolution or expiration; but

so far only as shall be necessary or proper | zen could only proceed under the provisional for collecting the debts and claims due to the corporation, converting its property and assets into money, prosecuting and protecting its rights, enforcing its liabilities, and paying over and distributing its property and assets, or the proceeds thereof to those entitled thereto."

We think that, under this statute, the directors in office at the time of the dissolution of the corporation are empowered to collect the assets, pay the liabilities, and distribute the surplus; that in discharging that duty they represent both the corporation and its stockholders; and that, consequently, in an action brought to compel them to discharge their duty, neither the corporation nor the stockholders are necessary parties. Upon the other questions involved in the case we concur in the opinion of Ingraham, P. J., below.

The order of the Appellate Division should be affirmed, with costs, and the questions certified answered, the first in the affirmative, and the rest in the negative.

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

Order affirmed.

(202 N. Y. 430.)

In re REYNOLDS et al.

MILLER et al. v. CITY OF NEW YORK et al.

PORTER v. WHALEN, Secretary of State. (Court of Appeals of New York. July, 1911.) Concurring opinion.

For former opinion, see 96 N. E. 87.

HAIGHT, J. I concur in the opinion of the Chief Judge (96 N. E. 87) in these proceedings. In matter of Sherrill v. O'Brien, 188 N. Y. 185-217, 81 N. E. 124, 117 Am. St. Rep. 841, I entertained the view that the proceedings in that case should be dismissed upon the ground of laches. I was then of the opinion that the provision of the Constitution giving to any citizen the right to have an apportionment by the Legislature reviewed by the court was self-executing, and in the absence of an act of the Legislature prescribing the practice to be followed the courts would entertain an application on the part of any citizen for a review, and that consequently it was not necessary to wait until it became time for the Secretary of State to give notice of the election of senators and assemblymen and the districts from which they were to be chosen. But my Associates then differed with me with reference to my construction of the provision, holding that, in the absence of legislation establishing the practice to be followed, a citi

remedies given by the Code, and therefore it was necessary to wait until it became time for the Secretary of State to give the notices of election and then proceed by a mandamus. That decision established the practice, and, although it was against my view, it now becomes my duty to follow the determination then made.

VANN, WERNER, HISCOCK, CHASE, and COLLIN, JJ., concur with CULLEN, C. J. HAIGHT, J., concurs in memorandum.

Order affirmed.

(203 N. Y. 259.)

GUASTI et al. v. MILLER. (Court of Appeals of New York. Oct. 24, 1911.)

1. APPEAL AND ERROR (§ 83*)-ORDERS AP

PEALABLE-SPECIAL PROCEEDINGS.

An application by a judgment debtor, discharged in bankruptcy, to cancel the judgment because of such discharge, is based on the result of the proceeding in bankruptcy in a fedby is a special proceeding, and an order deny. eral court, and the proceeding instituted there ing relief is appealable.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 523-527; Dec. Dig. § 83.*] 2. BANKRUPTCY (§ 425*)—DISCHARGE IN BANKRUPTCY-SCHEDULE OF LIST OF CREDITORS.

Under Bankr. Act July 1, 1898, c. 541, § 7, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3425), requiring a bankrupt to give a list of creditors, showing their residence if known, and if unknown that fact to be stated, a schedule which stated the residence and occupation of a creditor as "Unknown, California," and which stated that the nature of the consideration of the debt reduced to judgment, was for goods sold and delivered, was insufficient, where the claim was based on the acceptance of a draft drawn on the bankrupt by the creditor, containing his post office address, and where the creditor knew nothing of the proceedings in charge; and an application under Debtor and bankruptcy until long after the bankrupt's disCreditor Law (Consol. Laws 1909, c. 12) § 150, for the discharge of the judgment, was properly denied.

[Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 775; Dec. Dig. § 425.*]

Appeal from Supreme Court, Appellate Division, First Department.

Action by Secondo Guasti and another against Tobias Miller. From an order of the Appellate Division (129 N. Y. Supp. 1125), affirming an order of the Special Term, denying a motion of defendant to cancel a judgment obtained by plaintiffs, he appeals. Affirmed.

William C. Rosenberg, for appellant. Albert M. Yuzzolino, for respondents.

HAIGHT, J. The judgment sought to be canceled was docketed in the office of the clerk of the county of New York on April 16, 1895, and the discharge in bankruptcy was obtained May 9, 1903. The defendant's

schedule, with his petition in bankruptcy, [ N. Y. 521, 46 N. E. 849; Conlon v. Kelly, 199 was filed September 26, 1902, and set forth N. Y. 43, 92 N. E. 109. the plaintiffs' judgment in the following words:

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[2] In considering the case upon the merits, we find that the schedule states the residence and occupation of the plaintiffs as "Unknown, California"; and, stating the nature and consideration of the debt, it is said in the schedule to be for goods sold and delivered. The affidavits read upon the motion show that the plaintiffs were wine merchants and producers, doing business at Los Angeles, Cal., and had been engaged in that business for upwards of 25 years past, and that the claim on which the judgment was entered against the defendant was based on the acceptance of a draft drawn on the defendant by the plaintiffs, containing their post office address as Los Angeles, Cal., which was accepted by him and was given in payment of a car load of wine purchased by said Miller from the plaintiffs in Los Angeles, Cal. There were additional facts made to appear by the affidavits, which we do not deem it necessary to here refer to, for we deem them sufficient to sustain the finding of the Special Term that the defendant had actual notice of the plaintiffs' residence and post office address. It also is made to appear that the plaintiffs knew nothing of the proceedings in bankruptcy, or that the defendant had instituted such proceedings, until August 23, 1910, long after the discharge had been grant

The defendant applied to the Special Term for an order canceling the judgment, under section 1268 of the Code of Civil Procedure, which has been repealed and is now embraced in section 150 of the debtor and creditor law (Consol. Laws 1909, c. 12), and provides as follows: "At any time after one year has elapsed, since a bankrupt was discharged from his debts, pursuant to the acts of Congress relating to bankruptcy, he may apply, upon proof of his discharge, to the court in which a judgment was rendered against him, or if rendered in a court not of record, to the court of which it has become a judgment by docketing it, or filing a transcript thereof, for an order, directing the judgment to be canceled and discharged of record. If it appears upon the hearing that he has been discharged from the payment of that judgmented by the bankruptcy court. We are thereor the debt upon which such judgment was recovered, an order must be made directing said judgment to be canceled and discharged of record," etc. Bankr. Act July 1, 1898, c. 541, § 7, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3425), among other things, provides that the bankrupt shall file a schedule of his property, and also give "a list of creditors showing their residences if known, if unknown, that fact to be stated." The Special Term denied the defendant's application, upon the ground, as stated by the judge in his memoranda filed, that the affidavits clearly show that the plaintiffs' judgment was not duly scheduled, as required by the bankruptcy act, basing his decision upon Columbia Bank v. Birkett, 174 N. Y. 112, 66 N. E. 652, 102 Am. St. Rep. 479, and Graber v. Gault, 103 App. Div. 511, 93 N. Y. Supp. 76. That order has been affirmed in the Appellate Division.

fore of the opinion that the claim of the plaintiffs was not properly scheduled by the defendant, and that consequently the Special Term properly denied the defendant's application. Columbia Bank v. Birkett, 174 N. Y. 112, 66 N. E. 652, 102 Am. St. Rep. 478, affirmed 195 U. S. 345, 25 Sup. Ct. 38, 49 L. Ed. 231.

The order should be affirmed, with costs.

CULLEN, C. J., and WERNER. WILLARD BARTLETT, HISCOCK, and CHASE, JJ., concur. VANN, J., absent.

Order affirmed.

(203 N. Y. 250.)

WARREN v. RUPORT et al. (Court of Appeals of New York. Oct. 24, 1911.)

1. COSTS (§ 165*) — ALLOWANCE OF EXTRA Costs.

The extra allowance of costs pursuant to Code Civ. Proc. §§ 3253, 3254, may be granted or withheld in the discretion of the court, subject to the right to correct mistakes in granting or withholding, under sections 723 and 724, authorizing the court in furtherance of justice to make amendments.

[1] A preliminary objection has now been raised, to the effect that the application was for an order in the action, and for that reason it is not appealable to this court. The application is based upon the result of a proceeding in bankruptcy that has been conducted in the federal court, and the application may be made, not only by the bankrupt himself, but by any person who has succeeded to the rights of the bankrupt in the property affected thereby. Graber v. Gault, 103 App. Div. 511, 93 N. Y. Supp. 76. We are of opinion that it is a special proceeding. Peri v. N. Y. C. & H. R. R. R. Co., 152 *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Dig. § 637; Dec. Dig. § 165.*]
[Ed. Note.-For other cases, see Costs, Cent.

2. PARTITION ($ 114*)-COSTS-ALLOWANCE.

Code Civ. Proc. § 3253, providing that, in an action for partition of realty, a sum not exceeding a specified per cent. on the sum re

ceived or claimed or the value of the subject-court, on motion, after the entry of judgment matter involved may be allowed as extra costs, at the instance of a defendant who has denegatives the assumption that the power of the court to award extra allowances in parti- faulted without showing excuse for his detion suits is limited so far as defendants are fault, amend the judgment by striking out concerned to those who have filed answers cre- all extra allowances so granted?" ating issues.

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 440-449; Dec. Dig. § 114.*] 3. COSTS (§ 167*)-EXTRA ALLOWANCE-STATUTES-CONSTRUCTION.

Under Code Civ. Proc. §§ 3253, 3254, authorizing the court to allow extra costs, and providing that a sum awarded to plaintiff or to a party or to two or more parties on the same side cannot exceed $2,000, the value of the subject-matter as to the allowance of costs to plaintiff in partition is the value of the whole property while as to each defendant it is the value of his interest therein, and the allowance to a plaintiff cannot exceed the specified sum, and the allowance to all defendants, considered as a class, cannot exceed such sum.

[Ed. Note. For other cases, see Costs, Cent. Dig. §§ 644-649; Dec. Dig. § 167.*] Appeal from Supreme Court, Appellate Di

vision, Third Department.

Action by Joshua J. Warren against Mary Ruport and others. From an order of the Appellate Division (Warren v. Warren, 142 App. Div. 923, 127 N. Y. Supp. 1148), affirming an order of the Special Term amending an order by striking out provisions for extra allowances of costs, plaintiff appeals by permission on questions certified in Warren v. Warren, 142 App. Div. 925, 126 N. Y. Supp. 1150. Affirmed, and questions answered.

These questions, although evidently framed with a view to minimizing rather than emphasizing the malpractice which is the proper ground for criticism in the case at bar, are comprehensive enough to permit of answers which will lay down a general rule of practice under the sections of the Code of Civil Procedure relating to extra allowances of costs, and to that end a short discussion may be of some value.

[1] First of all, it is to be noted that extra allowances of costs, pursuant to sections 3253 and 3254 of the Code of Civil Procedure, are in no case a matter of right, but may be granted or withheld in the discretion of the court. The proper exercise of that judicial discretion necessarily includes the power to correct mistakes or abuses in the granting or withholding of extra allowances, and that is palpably true where the amount limited by the statute has been either inadvertently or consciously exceeded. The statute (section 3253) provides that the allowance shall not exceed 5 per centum upon the sum recovered or claimed, or the value of the subject-matter involved, and that is subject to the further limitation that in no case shall the sum awarded to a plaintiff, or to a party or two

H. D. Wright, for appellant. Alfred D. or more parties on the same side, exceed in Dennison, for respondents.

the aggregate, $2,000. In the case at bar the allowances granted to the attorneys for the plaintiff and for several defendants amount in the aggregate to more than 28 per centum of the price for which the property was sold. When this error was brought to the attention of the court, it was at once corrected by striking from the order all provisions for extra allowances. That was an exercise of discretion as clearly within the power of the

WERNER, J. This is an action in partition in which the court at Special Term fell into the error of granting extra allowances of costs which were so obviously unauthorized that the same court, upon motion of certain defendants who had not answered and had been awarded no costs, vacated its first order, and then refused to allow any costs beyond those which were regularly tax-court as the granting of the excessive allowable. From the order embodying this latter decision, the attorneys for the plaintiff took an appeal to the Appellate Division where there was a unanimous affirmance, with permission to appeal to this court upon two questions which have been certified to us. These questions are as follows:

"(1) In a partition suit, where several different attorneys appear for several different defendants and file answers creating issues, can the trial court, in the exercise of its discretion under section 3253 of the Code of Civil Procedure, grant an extra allowance of 5 per cent. to the plaintiff and any further sums not exceeding 5 per cent. to the attorneys for the defendants?

"(2) The trial court having exercised its discretion and having granted 5 per cent. extra allowance to a plaintiff, and 5 per cent. to each of four different sets of defendants appearing by separate attorneys, can such

ances was beyond its power. The mistake made by the court in assuming to exercise a power and discretion which it did not have was properly subject to correction under the broad provisions of sections 723 and 724 of the Code of Civil Procedure, and we may. therefore, end the discussion as to the second question certified to us by answering it in the affirmative. The court clearly had the power to correct its mistake, even to the extent of refusing to grant any extra allowance.

The first certified question cannot be disposed of so summarily, for it involves an analysis and interpretation of sections 3253 and 3254 above referred to. The question, fairly paraphrased, is whether the court has power in a partition suit, where several dif ferent attorneys appear for different defendants and file answers creating issues, to grant an extra allowance of five per cent, to

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