named. It was apparently on behalf of these four Ormsbys that Willard Ormsby signed the contract for the rods. On October 18, 1921, the Ormsbys, for a valuable consideration, released all their rights under the land contract to the vendor, this defendant, Anna Walker. The lightning rods had not then been paid for, and thereafter Willard Ormsby, as well as the other Ormsbys, declined to pay for the same. This action was thereafter brought against Anna Walker to recover the purchase price of the rods.

[1] Testimony was given by the plaintiff to the effect that the defendant, after the contract for the sale of her farm had been surrendered, in consideration of the promise of the plaintiff to leave the lightning rods upon her buildings, had promised the plaintiff to pay therefor the sum originally agreed to be paid by Willard Ormsby. Testimony was given by the defendant in denial of making such a promise. The jury determined the issue in favor of the plaintiff, and the plaintiff had judgment for the amount so promised to be paid. It is unnecessary to determine whether the lightning rods were fixtures, absolute title to which passed to the defendant, when her land contract with the Ormsbys terminated. If title did so pass, then the plaintiff, in agreeing that the defendant might retain the rods, conferred no benefit and suffered no detriment. The same is true if the rods were not fixtures, and had not been transferred by the Ormsbys to the defendant. The contract entered into by the plaintiff and Willard Ormsby, for the Ormsbys, was an unconditional contract. When the lightning rods were installed, absolute title thereto, if the same were not fixtures, passed to the Ormsbys. Thus, when the defendant made her promise to pay therefor, the plaintiff had no interest of any kind or nature in the rods. The plaintiff did not, therefore, forego any right when he agreed that the rods might be retained by the defendant. Consequently, upon either assumption, there was no consideration to support the promise of the defendant.

[2-4] There was no evidence that the Ormsbys either surrendered their land contract, or transferred the lightning rods to the defendant, in consideration of her promise to pay the plaintiff therefor. A case of this character was attempted to be made through the testimony of the witness Perry. Seth Ormsby had testified that upon one occasion he had told the plaintiff that the defendant Anna Walker had not agreed to pay for the lightning rods. Apparently upon some theory of discrediting this witness, Perry was permitted to testify that he had talked with Seth Ormsby, that Ormsby had said that the farm had been sold back to the Walkers, that Ormsby was asked how the plaintiff was to get his pay for the rods, and that he had said, "We have made arrangements with Mrs. Walker." This testimony was not receivable for two reasons: (1) Ormsby had not stated that the defendant had not promised to pay for the rods. He had only said he had so told the plaintiff. The testimony did not contradict Ormsby in the least. (2) Ormsby had not been asked the necessary preliminary question whether or not he had made a statement to Perry similar to that which Perry afterwards related. Furthermore, even if the evidence of Perry was properly receivable to discredit Seth Ormsby, it constituted no proof that any arrangement had ever been made with the defendant that, as

(202 N.Y.S.)

a part of the transaction whereby the farm and its buildings, outfitted with the rods, had been turned back to her, she would pay for the rods.

"It is important that the jury should understand that such evidence is collateral, and not evidence in chief." Per Church, C. J., in Sloan v. N. Y. Cent. R. Co., 45 N. Y. 127.

"Such testimony of inconsistent statements is admissible only for the purpose of impeaching the credit of the witness, but cannot be received as evidence of any fact touching the issue to be tried." Per Allen, J., in Charlton v. Unis, 4 Grat. (Va.) 60.

"It is no evidence whatever that the facts are as he formerly stated; and, though appeals are sometimes made to a jury that it is so, it is the province of the court to inform them that it is not so." Per Shaw, C. J., in Gould v. Norfolk Lead Co., 9 Cush. (Mass.) 346, 57 Am. Dec. 50.

There was no proof whatever, therefore, that the defendant, for a consideration, promised the Ormsbys that she would pay the bill of the plaintiff. As the promise alleged to have been made by the defendant was in any case unsupported by a consideration, the case of the plaintiff must fail. The judgment and order should be reversed on the law, with costs, and the complaint dismissed.

Judgment and order reversed on the law, and complaint dismissed, with costs.

COCHRANE, P. J., and VAN KIRK, HASBROUCK, and McCANN, JJ., concur.

(122 Misc. Rep. 102)

PEOPLE ex rel. CODD v. CITY OF BUFFALO.

(Supreme Court, Special Term, Erie County. December, 1923.)

Municipal corporations for assessment.

456 (2)-Tract not legally subdivided cannot be divided

The owner of a tract of land within the city limits, not legally subdivided into lots, was not entitled to have a paving assessment for a street bounding one side of the tract levied on the tract only to the depth of the adjoining lots fronting such street; his remedy being to obtain a legal subdivision of the land.

Proceeding by the People, on the relation of Robert M. Codd, against the City of Buffalo, to cancel an assessment on relator's premises for paving South Ogden street in the City of Buffalo, and to direct that relator's share of the tax be assessed on his lands fronting such street to a depth of 113.33 feet only. Writ and petition dismissed, and assessment confirmed.

Robert M. Codd, of Buffalo, in pro. per.

William S. Rann, Corp. Counsel, and Herbert A. Hickman, both of Buffalo, for respondent.

BROWN, J. Relator is the owner of a tract of land in the city of Buffalo, bounded north by Dingens street, 551.84 feet; east by the city line, 1,034 feet; south by Griswold street, 551.84 feet; and west by South Ogden street, 1,034 feet. This tract of land has not been

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subdivided into building lots. There are no streets laid out or proposed through the same. The lands to the south and west have been subdivided into building lots 113.33 feet deep and 50 feet wide, with streets 226.66 feet apart. Wheelock street, to the south of relator's tract, if extended north to Dingens street, would bisect relator's tract. In January, 1923, an assessment of $8,621.24, to pay for paving South Ogden street to the west of relator's tract, was laid, and an assessment roll prepared, in which relator's entire tract, as one parcel, was described, and said sum laid as a tax upon the whole thereof, for 1,034 feet front on South Ogden street and 551.84 feet deep to the city line. This paving tax was laid upon property to the south and west of relator's tract by separate liens and description of each lot 50 feet wide and 113.33 feet deep.

Relator's complaint is that adjoining lands on his south and west are only burdened by this paving tax to the depth of 113.33 feet, while his lands are burdened with a tax lien to the depth of 551.84 feet. To correct this inequality, he asks judgment canceling the assessment roll and directing the defendant to assess his share of such tax upon his lands fronting on South Ogden street 1,034 feet, and to a depth of 113.33 feet, asserting that some time in the future his tract will likely be subdivided into lots fronting on South Ogden street, with a depth of 113.33 feet. No complaint is made of the amount of the paving tax assessed upon relator's tract; simply the manner of laying it upon the whole, instead of upon a strip 113.33 feet wide on the west side. In other words, relator asserts that this paving tax of $8,621.24 must be assessed upon his single tract of land, the same as though it were legally subdivided into lots 113.33 feet deep, fronting on South Ogden street. It must be conceded that, if relator's tract were legally subdivided into lots 113.33 feet deep on South Ogden street, all of relator's land to the east of such lots would be free from the paving tax. To warrant the judgment asked for, a finding must be made that in fact relator's tract will be subdivided into lots 113.33 feet deep fronting on South Ogden street. Until such subdivision be actually, legally made, and the lots as such are brought into actual existence, no finding can be made that relator has any such lots to which he wishes the assessment to be restricted. Relator concedes that there is no authority in law for his contention, and, while agreeing with his concession, it might be added that there is no authority in logic or reason as well.

Cooley on Taxation (3d Ed.) at page 738, states that the authorities in general are imperative in holding that an unauthorized division of a tract in the assessment, which tract has not known legal subdivision, is as fatal as an unauthorized grouping of distinct parcels would be. The relief which relator seeks may be readily acquired by a simple and effective subdivision of his tract or parcel of land. Until such result is attained, it is not seen how the manner of assessing such a tax upon relator's tract can be changed by judicial decree.

Relator's writ and petition must be dismissed, and the assessment confirmed, with costs as provided by section 294 of the Tax Law. Ordered accordingly.

(121 Misc. Rep. 647)

(202 N.Y.S.)

PEABODY v. INTERBOROUGH RAPID TRANSIT CO.

(Supreme Court, Special Term, New York County.

1. Railroads binding.

October, 1923.)

123—Lease and modification approved by two-thirds of stock held

Under Railroad Law, § 148, a railroad is authorized to lease its property, which becomes binding when approved by the owners of two-thirds of the stock of each corporation, and, though the statute is silent thereon, by fair implication such lease may be modified in the same manner. 2. Corporations 1-Are creatures of the state, and can act only for purposes and in manner authorized.

Corporations are creatures of the state, and can act only for purposes and in the manner authorized by the state.

3. Corporations 398 (2)-Stockholders, as such, cannot contract for corporation.

Ordinarily a corporation acts through its officers, and the stockholders as such cannot contract for the corporation, though at a meeting of stockholders they may sometimes authorize the corporation to enter into a contract.

4. Contracts 236-Parties may waive agreed formalities in changing contract. Though parties to a contract may provide that the contract cannot be changed without certain formalities, they may waive these formalities. 5. Railroads 123-Parties to lease may waive unanimous consent of stockholders to modification.

In so far as the lease of a railroad created only obligations running from lessee to lessor, the parties thereto could, by agreement, modify or abrogate the lease, and waive the requirement that certain modifications could be made only with the unanimous consent of lessor's stockholders. 6. Railroads 131-Public policy as respects leasing of railroad embodied in statute.

The public policy of the state to permit railroad corporations to lease their property is embodied in Railroad Law, § 148, which fixes the method by which such corporations must act.

7. Railroads 123-Powers of directors to lease cannot be revoked by stockholders.

Powers of the directors of a railroad, as respects leasing the railroad, are original and undelegated, and cannot be revoked by the stockholders' 8. Corporations 297-Directors must use untrammeled discretion.

Corporation stockholders and the state have a right to insist that the directors shall use an untrammeled discretion in the exercise of powers given by statute or by the certificate of incorporation.

9. Railroads 123—Lease requiring unanimous consent of stockholders to reduction of rent illegal.

A provision of a railroad lease that lessee's guaranty of 7 per cent. dividends as rent to lessor's stockholders could not be reduced without the unanimous consent of lessor's stockholders held illegal, as attempting to set up a different agency for the modification of such lease than that established by Railroad Law, § 148, authorize the leasing of railroad property by directors with the approval of the owners of two-thirds of the stock.

10. Railroads 133(4)-Guaranty of dividends by lessee held based on direct guaranty rather than on lease.

Where record stockholders of lessor railroad were guaranteed an annual dividend of 7 per cent. by lessee, to be paid in accordance with the terms of the lease, which guaranty was indorsed on lessor's certificates of stock, any rights of such stockholders were asserted because of the direct guarFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

anty, rather than because of the terms of the lease, which gave rise to the guaranty, though to some extent the two instruments must be read together.

11. Railroads 133(4)-Lease may provide for “guaranty" of dividends on lessor's stock.

Under Railroad Law, § 148, providing that a lease of a railroad may provide for the "guaranty of the stock and bonds of either of such corporations by the other," lessee may promise that each stockholder of lessor shall receive payment of an agreed sum as dividend, though technically the stock of the corporation is not an obligation of the corporation which can be guaranteed.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Guaranty.]

12. Railroads 133(4)-Lessee's obligation to pay dividends as rent held not to survive obligation to pay rent.

Where lessee railroad indorsed on lessor's outstanding stock certificates a guaranty of 7 per cent. dividends on such stock, to be paid in accordance with the terms of the lease, the guaranty did not survive a valid modification of the lease, reducing the rent, in view of the lease provision that nothing therein should limit the lawful powers of the board of directors and shareholders of lessor to deal with the subject-matter of the lease, that the obligation of lessee was to pay dividends as rent, and that the obligation to pay rent could be terminated by lessor taking back the leased property for lessee's default.

Action by Nina H. Peabody against the Interborough Rapid Transit Company. On plaintiff's motion for judgment on the pleadings. Motion denied.

Werner & McGivney, of New York City (John Woodward, of New York City, of counsel), for plaintiff.

James L. Quackenbush, of New York City (J. Osgood Nichols, of New York City, of counsel), for defendant.

LEHMAN, J. The plaintiff is a stockholder of the Manhattan Railway Company. It appears from the complaint that in January, 1903, the Manhattan Railway Company leased all its franchises and property to the defendant, and that the defendant thereupon, and as part of the consideration for the making of the said lease, signed, executed, and delivered to the stockholders of record of the lessor company upon their certificates of stock a promise that

"Dividends amounting to 6 per cent. per annum and an additional amount, if earned, not exceeding 1 per cent. per annum, until January 1, 1906, and after that date dividends amounting to 7 per cent. per annum, upon the par value of the outstanding capital stock of the Manhattan Railway Company are guaranteed, and will be paid by the undersigned in accordance with the terms and provisions of a certain indenture made between the Manhattan Railway Company and the undersigned dated the 1st day of January, 1903."

The Manhattan Company has not since January 1, 1922, paid its stockholders 7 per cent. dividends, and the plaintiff has now brought this action upon the aforesaid promise or guaranty of the defendant. The defendant has interposed an answer containing both denials and affirmative defenses and the plaintiff has moved for judgment on the pleadings.

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