FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. the intermediate life estate of the widow was extinguished by her death; that meantime, by operation of law, the legal title to Fraser's estate vested in his heirs, subject to the widow's life estate, and subject to being divested on her death and vested in the individual who should then, as the will provided, be the treasurer of the synod or its last presiding officer. We think that this construction of the will cannot be sustained; that the devise of the remainder vested immediately upon the death of the testator, and its validity must be judged by the power of the devisee to take at that time. But, if this construction was possible, it would not validate the title of the defendants. In the first place, there is no power of sale, either express or implied, given to the devisee in trust. The real estate is devised to him "in trust to apply the same to the uses and for the benefit of such ecclesiastical body." There was no direction to sell the property, and no provision from which a power of sale could be implied, and, consequently, no equitable conversion. The trust was not a valid trust under section 55 of the Statute of Uses and Trusts (1 R. S. 728, § 55, as amd. by Laws of 1830, chap. 320, § 10). Nor was the duration of the trust in any way limited upon. lives in being at the death of the testator. The trust was created by the will, and its validity must be determined by the law in force at the death of the testator. Whether the estate then vested in the devisee or not is entirely immaterial in determining the validity of the trust. Nor is the provision upon which the title of the defendants rests a simple direction to executors or trustees to pay or divide, at a future time, the trust estate in their hands. The devise is, "I give the remainder of all of my real estate and the residue of my personal estate, at her death, to the person," etc. Here is a present gift of the remainder of the real estate, and the devisee is to take it in trust for the benefit of an unincorporated ecclesiastical body. The cases of Warner v. Durant (76 N. Y. 133) and Clark v. Cammann (160 id. 315) are not applicable. It was not the proceeds of the property that were to be applied to the uses of the ecclesiastical body, but the property itself. Nor is there any contingency upon which the devise was to take effect. The devise was absolute, the possession of the property devised being postponed only until the death of the testator's wife. Nor was there any clause which indicated an intention of the testator that the property should be held by the trustees for the use of App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. any person or corporation thereafter to come into being, as in Burrill v. Boardman (43 N. Y. 254) and other cases which have followed that case. Nor do we think that chapter 701 of the Laws of 1893 is at all applicable. The testator died long before the passage of that act. The devise was either valid or invalid at the death of the testator. If valid, the remainder vested in the devisee; if invalid, it vested in the heirs at law of the testator, and subsequent acts of the Legislature could not take from the testator's heirs at law the real property that had vested in them and vest it in another, nor does the act in terms affect a devise which had gone into effect before its passage. In Dammert v. Osborn (140 N. Y. 30) it was held that the act would not affect property that had vested prior to its passage, and that remainder vested either in the devisee or in the heir at law of the testator upon the death of the testator. It follows, therefore, that there must be judgment for the plaintiffs as prayed for, with costs. VAN BRUNT, P. J., O'BRIEN and MCLAUGHLIN, JJ., concurred. HATCH, J.: I concur with Mr. Justice INGRAHAM in his opinion in this case so far as it relates to the existence of the unincorporated association and its incapacity to take under the terms of the will. It still continued in existence and the corporation defendant represented it only as trustee of its property; but the will in the present case did not make the gift to such trustee for it or to it as a corporation. In no view, therefore, can the corporation be treated as taking anything by the terms of the will. This view renders it unnecessary to express any opinion as to whether the gift under the terms of the will was present or future, as in either event the devise and bequest to the trustee for the unincorporated association is void. The judgment, should, therefore, pass for the plaintiffs. Judgment ordered for plaintiffs, with costs. FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. ARCHIBALD A. HUTCHINSON and VICTOR K. MCELHENY, JR., on Behalf of Themselves and all Other Stockholders of the AMERI CAN MALTING COMPANY Similarly Situated, Appellants, v. CHARLES A. STADLER, Respondent, Impleaded with AMERICAN MALTING COMPANY, Defendant. Corporation — liability of a director of a foreign corporation, in an action brought in the State of New York, under section 60 of the Stock Corporation Law, because of dividends paid out of the capital of the corporation. A stockholder of a New Jersey corporation, which transacts business in the State of New York (having obtained a certificate from the Secretary of State authorizing it so to do), may, under section 60 of the Stock Corporation Law (Laws of 1892, chap. 688, added by Laws of 1897, chap. 384), maintain, in the State of New York, an action on behalf of himself and all other stockholders of the corporation similarly situated, to compel a director of the corporation, who participated in declaring dividends on the stock of the corporation out of the capital thereof, in violation of section 30 of the General Corporation Law of the State of New Jersey, which is similar to section 23 of the Stock Corporation Law of the State of New York, to restore to the corporation the amount of the dividends thus unlawfully declared and paid, where it appears that the corporation has refused to bring such an action. Quære, whether independent of the provisions of section 60 of the Stock Corporation Law, the courts of the State of New York would entertain the action. Semble (per INGRAHAM and McLaughlin, JJ.), that the courts of the State of New York will not entertain an action to enforce a liability imposed by a statute of another State, if the liability thus imposed is penal, or, even though it is not penal, if the liability thereby imposed is not contractual in its nature or founded upon the principles of the common law. APPEAL by the plaintiffs, Archibald A. Hutchinson and another, on behalf of themselves and all other stockholders of the American Malting Company similarly situated, from a judgment of the Supreme Court in favor of the defendant, Charles A. Stadler, entered in the office of the clerk of the county of New York on the 31st day of December, 1902, dismissing the complaint on the opening of counsel. John A. Garver, for the appellants. Thomas Thacher, for the respondent. App. Div.] FIRST DEPARTMENT, JULY TERM, 1903. There are two causes of action set up in the complaint, the first to require the defendant Stadler, a director of the defendant corporation, to account for and pay to the defendant corporation certain dividends amounting to $1,855,350, made and paid out of the capital stock of the said company, and the second to require the defendant Stadler to account for and pay to the said corporation $650,000 damages sustained by the defendant corporation by certain alleged illegal, negligent, fraudulent and careless management of the property and affairs of the defendant corporation by its directors. The defendant Stadler answered, and the case was brought on for trial at the Special Term. After counsel for the plaintiffs had opened the case the defendant moved to dismiss the complaint with respect to each of the causes of action stated, on the ground that the facts stated were not sufficient to constitute a cause of action, and also upon the ground that the facts stated in the complaint, as limited by the opening, did not justify a judgment against the defendant. This motion was granted and the complaint dismissed. An examination of the opening of counsel for the plaintiffs fails to show that there was any statement which at all limited the allegations of the complaint. In the case of Hoffman House v. Foote (172 N. Y. 348) it was held that a judgment dismissing a complaint upon the pleadings and opening cannot be sustained without adopting one of three positions incumbent upon the defendant to clearly establish: First, that the complaint does not state a cause of action; second, that a cause of action well stated is conclusively defeated by something interposed by way of defense and clearly admitted as a fact, or, third, that the counsel for the plaintiff in his opening address by some admission or statement of facts so completely ruined his case that the court was justified in granting a nonsuit; that the practice of disposing of cases upon the opening of the counsel cannot be resorted to unless the counsel stating the case deliberately and intentionally states or admits some fact that, in any view of the case, is fatal to the maintenance of the action. We are first brought to a consideration of the complaint as if the question were presented upon a demurrer to each of the causes of action on the ground that the complaint failed to state a cause of action. The plaintiffs sue on their own behalf and on behalf of all FIRST DEPARTMENT, JULY TERM, 1903. [Vol. 85. the other stockholders of American Malting Company similarly situated. The complaint alleged that the American Malting Company is a stock corporation, organized under the laws of the State of New Jersey, the plaintiffs being owners of shares of the common stock of said corporation; that the General Corporation Law of the State of New Jersey (Laws of N. J. of 1896, chap. 185, § 30) provides that "no corporation shall make dividends except from the surplus or net profits arising from its business, nor divide, withdraw, or in any way pay to the stockholders, or any of them, any part of its capital stock, or reduce its capital stock, except according to this act, and in case of any violation of the provisions of this section, the directors under whose administration the same may happen shall be jointly and severally liable, at any time. within six years after paying such dividend, to the corporation * * * to the full amount of the dividend made or capital stock so divided, withdrawn, paid out or reduced, with interest on the same from the time such liability accrued;" that the defendant corporation complied with the provisions of the General Corporation Law of the State of New York (Laws of 1892, chap. 687, §§ 15, 16, as amd. by Laws of 1895, chap. 672) to enable it to do business in this State, and received from the Secretary of State of New York a certificate to that effect, and in pursuance of such certificate has transacted business continuously in this State, and has its main business office in the city of New York; that a large portion of its property has been and still is in the State of New York, its board of directors having held and still holding their meetings in the city of New York, and that its business generally is carried on, transacted and conducted from its office in the city of New York, and the acts and business transactions and management of said company by said board of directors thereafter in the complaint set forth were done and had and carried on in this State; that the defendant Stadler had been a director of the corporation from the time of its incorporation, on October 1, 1897, until the commencement of the action, and as such director took part in the administration of all the affairs of the said corporation and aided in, consented to, voted for and ratified the acts of the board of directors of said company referred to in the complaint; that the said corporation, while the defendant Stadler was a director thereof, from October 1, 1897, to November 9, 1899, |