Opinion by Davis, P. J.; Brady, material allegations of the comJ., concurs. PLEADINGS. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Geo. W. Green et al., applts., v. George W. Raymond, respt. Decided April, 1882. Where the plaintiff has neglected, down to the time of trial, the remedies appropriate to a defective answer, it is then too late to move for judgment on the pleadings, and he will be deemed to have waived any defect therein. plaint. The portion of the answer referred to reads as follows: "The defendant for his answer to the plaintiff's complaint herein; first, denies the same, except the copartnership of the plaintiffs, which he admits." The plaintiffs gave evidence by C. that he ordered the lumber in question and used it in building defendant's house. Defendant then gave evidence to show that a portion of this lumber was put by C. to other uses. This evidence was Where a question of agency in the purchase objected to by plaintiffs and an of material is in litigation, and the party seeking to establish such agency gives evidence, as bearing on the probabilities of the case, that the materials were ordered by the alleged agent and were taken and used by him for the benefit of the alleged principal, it is competent, upon the same ground, for the adverse party to show that a portion of the materials so ordered were applied by the alleged agent to a different use. Appeal from judgment in favor of defendant, entered on the report of a referee. Action brought to recover for lumber claimed to have been sold to defendant. The defendant entered into a written contract with one C., by which C. was to furnish materials and build for him a house at a stipulated price. The lumber in question was ordered by C. from the plaintiffs. Plaintiffs claimed Plaintiffs claimed that defendant had authorized C. to procure this lumber upon his (defendant's) credit. At the trial plaintiffs moved for judgment upon the pleadings, on the ground that the answer did not contain a sufficient denial of the exception taken. D. C. Feeley, for applts. Held, That though there might be some question of the sufficiency under the Code of this denial, yet the plaintiffs' proper remedy was either to have moved for judgment upon the ground that the answer was frivolous, or to have moved, under Section 546 of the Code, to have it made more definite and certain; and that having failed to take advantage of these remedies down to the time of trial, he appeared to have regarded the answer as sufficient and must be deemed to have waived any defect therein. 18 N. Y., 119; 39 N. Y., 436. Also held, That if C. was in fact the agent of the defendant in this matter, it would then be immaterial what he did with the lumber so ordered. The question of his agency, however, is the real question litigated, and the plaintiffs having previously given evidence by C. for the purpose of establish ing the agency, as bearing on the probabilities of the case, that he ordered the lumber in question and used it in constructing defendant's house, it was therefore competent, upon the same ground, for defendant to show that portions of this lumber were in fact taken and used elsewhere. Judgment affirmed. Opinion by Haight, J.; Smith, P. J., and Hardin, J., concur. EVIDENCE. WASTE. ASSIGNEE'S DEED. N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Almira B. Coleman, respt., v. The Manhattan Beach Co. et al., applts. Decided Feb., 1882. A quit claim deed operates as a conveyance of the premises quit claimed therein. Parol evidence is competent to show whether particular premises are a parcel or not of those granted by a conveyance or deed. C. conveyed certain premises to the plaintiff, and afterwards was adjudged a bankrupt. An assignee was appointed. Plaintiff thereafter filed a petition stating that a proper description had been omitted on the said conveyance to her, by mistake, and praying that the Bankruptcy Court would direct said assignee to convey all his right, title and interest as such assignee in said premises, describing them, to plaintiff. The petition was granted and the assignee obeyed the order of the court. Held, That his Held, That his conveyance was not one in contravention of the statute which provides that every grant of land shall be absolutely void if at the time of the delivery thereof such land shall be in the actual possession of a person claiming under a title adverse to the grantor. Appeal from a judgment entered in favor of plaintiff on decision of the Special Term. Action of ejectment to recover an undivided fifth part of premises known as Pelican Beach. Both plaintiff and defendants claim title under one L. who was the owner and holder of such premises at the time of his death in 1835. The conveyance on which the plaintiff depends was made more than twenty years prior to that on which the defendants depend. was The earlier conveyance made in 1855 by G. L. and others, widow and heirs-at-law of said L., deceased, to F. The grantors remised, released and quit claimed to said F. and his assigns and heirs forever all their right, title and interest in and to the said Pelican Beach, near Barren Island, town of Flatlands, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, etc., habendum to said F., his heirs and assigns forever. F. conveyed the same premises to C. in 1856 by the same description, and said C. later in the same year conveyed to the plaintiff certain premises in Kings County, describing them as being the same premises that were conveyed to C. by the deed from F. above named, but Pelican Beach was not otherwise described. Said C. was afterwards adjudged a bankrupt and his assignee appointed. In 1880 the plaintiff filed a petition in the United States District Court, Southern District of New York, alleging that she had purchased the premises in question from C. and that a proper description of the premises had been omitted from the conveyance to her by mistake, and praying that said assignee ought be directed to exe. cute to her a deed for the purpose of correcting such mistake. After a hearing the court made an order directing said assignee to convey to said plaintiff all his right, title and interest as such assignee, in and to a certain piece or parcel of land known as Pelican Beach, near Barren Island, in the town of Flatlands and the county of Kings, being a portion of the property that was conveyed by F. to C. by the deed before mentioned. In 1880 the said assignee, for the purpose of correcting the said mistake and under such direction, conveyed the premises in question by the description last aforesaid to i the plaintiff. To identify the premises so conveyed resort was had upon the every grant of land shall be absolutely void if at the time of the delivery thereof such land shall be in the actual possession of a person claiming under a title adverse to the grantor, because, 1st: The title of the plaintiff is not dependent on the conveyance from the assignee, which was merely confirmatory, and 2d: The title of the assignee was a mere nominal or official one under the direction and control of the court whose direction herein was but a matter of common equity. 4 Hun, 284. Judgment affirmed, with costs. Opinion by Gilbert, J.; Barnard, P. J., and Dykman, J., concur. CORPORATIONS. LIABILITY OF TRUSTEES. trial to parol evidence. The trial N.Y. SUPERIOR COURT. GENERAL judge gave effect to the evidence on the part of the plaintiff and decided that the premises in question were embraced within the premises conveyed to the plaintiff. Held, That the deed to F., although in form a quit claim deed, yet operated as a conveyance of the premises in question. 6 Vesey, TERM. Thomas Vernon et al., applts., v. Albert Palmer, respt. Decided May 1, 1882. A trustee of a corporation organized under the Act of 1848, who is in office when the company makes default in filing its annual statutory report, is liable, under § 12, for a debt of the corporation contracted during the continuance of his office and of the default, though it be not payable till after he has ceased to be a trustee. The amendment of § 12 of said act in 1875 did not relieve corporations theretofore or ganized under the act from the obligation of filing annually the statutory report. Action to recover from defendant, as one of the trustees of the McKillop & Sprague Co., a debt of the corporation under § 12 of the Act of 1848. The action was brought November 18, 1878. The certificate of incorporation of said | once or at a future period; and in case of an agreement for the pur- company was filed in April, 1872, and from that time to and including 1877 it filed and published its annual report, but did not file any report in 1878; and a receiver was appointed and the corporation wound up November 6, 1878. Defendant was elected trustee for the year ending August 6, 1878, and accepted the office. There was no subsequent election of trustees. On June 8, 1878, said company gave to plaintiff its promissory note, due August 10, 1878, and at divers times between June 7 and July 16, 1878, plaintiff sold and deliverrd to said company goods on four months' credit. The amount of plaintiff's claim against the corporation was ad mitted, but the court dismissed the complaint on the ground that defendant's term of office had expired before the expiration of the term of credit given by plaintiff to the corporation. Paddock & Cannon, for applts. under the act, and that the pur James B. Dill, for respt. Held, That, upon default in filing the annual report, all the trustees in office become jointly and severally liable for all the debts of the company contracted by them or their predecessors, and for all that are subsequently contracted during their continuance in office and the continuance of the default. 33 Super. Ct., 511; 58 N. Y., 673. That the debt is contracted, within the meaning of the statute, when, in consideration of value received by the corporation, a payment is to be made, whether at Defendant contended that inasmuch as by the amendment of § 12 in 1875, the word "annually" was dropped, and a clear distinction was drawn between such companies as were then over a year old, and such as were then under that age, the construction to be put upon the section as amended is that companies more than a year old on January 1, 1876, should within twenty days after the said date make a report, and that thereupon they should be absolved from making any further annual report. Held, That the legislative intent was to preserve the requirement of an annual report from every company organized or to be organized pose of the amendment was simply Judgment and order reversed; new trial ordered; costs to appellants to abide the event. Opinion by Freedman, J.; Sedgwick, Ch. J., and Russell, J., con cur. SURETY. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. John Hancock Mutual Life Ins. Co., respt., v. Julius Loewenberg, applt. Decided April 10, 1882. The surety on a bond is entitled to strict construction of the agreement and it cannot be enlarged by implication to cover anything which was not in the contemplation of the contracting parties at the time the bond was executed. Appeal from judgment entered upon report of a referee. This action was brought against the defendant as surety for one Wolffsohn upon a bond executed by him in connection with W. and one G. W. was appointed as agent of plaintiff and gave this bond for the faithful performance of his duties as such. W. was to receive a certain percentage of all premiums which he collected for the plaintiff; he was permitted to draw a specified sum per month in anticipation of his salary, and agreed at the end of the year to refund to the plaintiff such sums of money drawn in advance in case his share F. R. Minrath, for applt. Held, There is no proof in the case to show that the defendant knew of the features of the agree ment in reference to the refunding any excess of advances for salary or for any services rendered by the agent. The condition of the bond relates exclusively to the faithful discharge of the duties of W. as agent of the company, and has no relation whatever to advances made by the company, which may not be considered as fairly within the language or spirit of the bond itself. The defendant, being the surety, is entitled to a strict construction of the agreement, and it cannot be enlarged by implication to cover anything which was not in the contemplation of the contracting parties at the time the bond was executed. For these reasons the judgment should be reversed and a new trial ordered, with costs to abide the event. Per curiam opinion. CONSTITUTIONAL LAW. AS SESSMENTS. of the premiums collected by him N. Y. SUPREME COURT. GENERAL should not entitle him to that amount. Under this agreement certain sums were paid. W. having ceased to act as agent of plaintiff, the sums paid him were in excess of the amount of his commissions. Judgment was obtained against the defendant surety for the excess, on the report of a referee, from which judgment this appeal is taken. TERM. FIRST DEPT. In re petition of William T. Blodgett to vacate assessment. Decided April 10, 1882. Where the title of a local or private act expresses a general purpose or object, all matters fairly or reasonably connected with it and all measures which will or may facili tate its accomplishment are proper to be incorporated in the act and are germane to the title. The title of Chapter 593 of the Laws of 1870, |