Misc.] Supreme Court, March, 1899. Bank v. Commrs. of Taxes, 9 Hun, 650; 69 N. Y. 91), but it was held in People v. Wall St. Bank, 39 Hun, 525, and in People ex rel. Merchants Nat. Bk. v. Coleman, 41 id. 344, that neither a bank nor its receiver was a party aggrieved as to assessments against its stockholders on capital stock and that neither could maintain certiorari to review the same. The law has been materially changed since these decisions. The only duty then enjoined upon banks with respect to such taxes, was to withhold dividends declared in favor of stockholders until they paid the taxes imposed on their stock. Notice of the assessment is required to be given to the bank and not to the stockholders, and the statute now provides that " every such bank or banking association shall retain dividends until the delivery to the collector of the tax-roll and warrant of the current year, and within ten days after such delivery shall pay to such collector so much of such dividend as may be necessary to pay any unpaid taxes assessed on the stock upon which such dividend is declared." The plaintiff alleges that it held dividends applicable; that it knew of the violations of the statute by the taxing officers; that its stockholders forbade its appropriating their dividends to pay the taxes, notwithstanding the mandatory language of the statute, and that it will be subjected to suits by them if it does, and its chartered rights will be impaired if the courts do not grant relief. The Consolidation Act, sections 819 and 820, uses synonymously the words "affected" and "aggrieved" as applied to the parties entitled to a hearing or review. If the bank should pay the taxes, neither it nor its stockholders could recover back the same, for, although the assessors did not have jurisdiction to assess according to the arbitrary rule adopted by them, they did have jurisdiction of the subject-matter. Bank of Commonwealth v. Mayor, 43 N. Y. 184; People ex rel. State Line R. R. Co. v. Board of Supervisors, 48 id. 93; Tripler v. Mayor, 125 id. 617. This state of facts and law clearly distinguishes the case under consideration from those last cited and should, I think, upon principle, give the bank a standing to obtain a review by certiorari and have the valuations determined according to the rule and principle prescribed by the statute, or, if that should be impracticable, then, according to some uniform rule or principle that will result in substantial equality of the burdens of taxation as contemplated by law, before it is compelled to pay the taxes. § 318, chap. 409, former Banking Law; § 72, chap. 908, Laws 1892, new Supreme Court, March, 1899. [Vol. 27. Banking Law; Cummings v. National Bank, 101 U. S. 156-157; National Bank v. Commonwealth, 9 Wall. 353. These considerations lead to the conclusion that the complaint fails to state a cause of action for equitable relief and the demurrer thereto must be sustained, and inasmuch as the defect cannot be obviated by amendment, final judgment is directed dismissing the complaint, with costs. Complaint dismissed, with costs. THE AMERICAN CHURCH MISSIONARY SOCIETY, Plaintiff, v. THE GRISWOLD COLLEGE et al., Defendants. (Supreme Court, New York Special Term, March, 1899.) Trusts - Determination by the failure of the beneficiary to perform its purposes. In 1865 a donor created in the plaintiff a trust to establish in a college a perpetual theological professorship. It appeared that for at least ten years last past the college had maintained only a preparatory school for girls; that no theological department had existed during the same period; that it was not contemplated ever to revive or maintain one in the future, and that the college buildings were in use for other purposes. Held, that the conduct of the college amounted to a voluntary surrender of all benefits under the trust and that the trustee should be directed to transfer to the donor the corpus of the trust and any accumulations. ACTION for the construction of a trust fund. Swayne & Swayne, for plaintiff. Livingston & Livingston, for defendant. KELLOGG, J. In 1865 the defendant Louisa Dean delivered to the plaintiff in trust $10,000 upon certain conditions, and for a specific use. The trustee accepted the trust and the defendant Griswold College accepted and agreed to the conditions. The Misc.] Supreme Court, March, 1899. plaintiff new brings this action, alleging in substance that defendant Griswold College, sole beneficiary at the time the trust was created a seminary of learning in Davenport, Iowa-has neglected and refused to perform the conditions of the trust, and asks the direction of this court as to the trust fund and the accumulated interest. Defendant Louisa Dean admits the allegations of plaintiff as to neglect and refusal on the part of the beneficiary, Griswold College, and asks that the trust be declared at an end, and the trust fund be restored to her as donor. Griswold College denies the neglect and refusal to perform the conditions, and asks that the trust be continued as originally created. The executors of Bishop Perry ask that the income from January, 1876, to date of his decease, in 1898, be paid to them as holding the professorship for that term. The evidence is so far undisputed that the facts are not difficult to find. It is plain that when this trust was created the donor of the trust fund had a definite purpose in mind, to-wit: the creation of a theological professorship, to be known as "The Anthon Professorship of Systematic Divinity," in Griswold College, and to have this continuous and perpetual as a live branch in a theological school. The acceptance of Griswold College placed that institution in the attitude of agreeing to create and maintain such a school and such a professorship in good faith, and effectuate the purpose of the donor of the trust. The trustee, plaintiff herein, had the duty and power of naming the incumbent of the chair in this professorship. The trustee has continuously performed on its part and provided a professor, but the defendant Griswold College for the past ten years and over has failed and refused to provide the theological school or to maintain any seminary of learning in which there was a theological departinent. For many years past no school or seminary of learning has been maintained other than a preparatory school for girls and the college buildings are used for other purposes; in short, the college or such is moribund and there exists no expectation or intention upon the part of its officers to maintain in the future any other than a preparatory school for girls. There does not exist now, nor has there existed for years in this institution, any school of theology or any theological department nor any branch known as "The Anthon Professorship of Systematic Divinity," nor is it the expectation or intention of the officers of the institution to ever revive or maintain either in the future. This is the plain conclusion from the evidence. The evidence is Supreme Court, March, 1899. [Vol. 27. given for the most part by officers of this institution and with the evident bearing towards a retention of the income from this trust fund, and we may reasonably look from them to get all the facts which tell most favorably to that end. If there existed any remote expectation or intention pointing to the revival of these departments it would undoubtedly have been mentioned. I think this neglect and abandonment on the part of defendant Griswold College, so long continued, must be interpreted as a refusal to longer comply with the conditions of the trust, and that this must operate as a voluntary surrender of all benefits under it. It does not appear that the named professor, William Stevens Perry, has for the past ten years been such except in name; he has never served as a professor, and though he has been the uncomplaining recipient continuously of the income of this fund up to January 1, 1896, through the grace of the trustee, no legal or equitable grounds are here presented for any further claim. From the conclusion to which all the facts point and following the principle declared in Associate Alumni v. General Seminary, 26 App. Div. 152, there seems to be no escape. The trustee should be directed to turn over to Louisa Dean, the donor of the fund, both the corpus of the fund and the accumulations, and judgment is so directed. Prepare decision and judgment accordingly, and settle on notice. Ordered accordingly. THE PEOPLE ex rel. METROPOLITAN STREET RAILWAY CO., Relator, v. GEORGE F. ROESCH, Defendant. (Supreme Court, New York Special Term, March, 1899.) Greater New York charter Removal of cause from Municipal to City Court. Where there is more than one party defendant to an action brought in the Municipal Court of the city of New York, one defendant cannot alone procure the removal of the action to the City Court of New York, as it is the intention of section 1366 of the Greater New York charter of 1897 that the whole action shall be removed and not a mere part of it. APPLICATION for a writ of mandamus. Misc.] Supreme Court, March, 1899. Henry A. Robinson and John T. Little, Jr., for relator and writ. Arthur K. Kuhn, for defendant, opposed. GIEGERICH, J. The relator, being sued for negligence jointly with another defendant in the Municipal Court, made a motion for the removal of the cause to the City Court, and duly filed an undertaking, in which motion and undertaking the codefendant did not join. The justice held that he had no power to make such direction, and this application is for a mandamus to compel such removal. Such writ, however, will not issue when there is an adequate remedy by appeal. People ex rel. Wright v. Coffin, 7 Hun, 608, 609; Clark v. Miller, 54 N. Y. 528, 534; People v. R. R. Co., 63 How. Pr. 291, 296. That this remedy exists where the justice erroneously refuses to accept an undertaking and to sign the order of removal is well settled. Hogan v. Devlin, 2 Daly, 184; O'Connor v. Moschowitz, 48 How. Pr. 451; People ex rel. Reynolds Card Mfg. Co. v. Fourth District Court, 13 Civ. Pro. 134; Warren v. Campbell, 14 N. Y. Supp. 165; 37 N. Y. St. Repr. 762; Langbein's Municipal Court Practice (4th ed.), p. 76. Moreover, after careful examination, I conclude that the motion should be denied. upon the merits. The Greater New York Charter (§ 1366), so far as it applies to the question under review, provides that "the defendant may, after issue is joined and before an adjournment has been granted upon his application, apply *for an order removing the action * to the city court of The City of New York * * *. Such an order must be granted upon the defendant's filing with the clerk an undertaking From the time of granting the order the city court * has cognizance of the action, and the clerk of the district must forthwith deliver to the clerk of such court to which the action shall be removed, all process, pleadings and other papers in the action, and certified copies of all minutes, entries and orders relating thereto, which must be filed, entered or recorded, as the case requires in the latter's office." I think it may be fairly inferred from these provisions, that the action can be removed only by voluntary act of the sole defendant, or if there be more than one, of all defendants, and upon his or their application; and that the words "the action," as therein used, necessarily mean the entire action, and not a part thereof. Any other construction would, to my mind, be manifestly * * * * * * * * * |