First Department, July, 1920. [Vol. 192. government, having sought the jurisdiction of this court to collect from the Bank of Montreal the moneys on deposit belonging to the Bank of Mexico, stands in the same position as any other suitor. Having submitted himself voluntarily to the jurisdiction of our court, his rights become subject to a consideration of claims which other parties may have in the funds which are the subject-matter of the action. The respondent relies upon Oetjen v. Central Leather Co. (246 U. S. 297, 304) in support of the proposition that the courts of one independent government will not sit in judgment upon the validity of the acts which occurred in territory of another government. There can be no doubt as to the correctness of such a holding. The Oetjen case involved the title of property brought within the custody of a court in this country which had been appropriated in its own territory by the Mexican government during a state of revolution, by virtue of which it obtained title thereto. After the property which was the subject-matter of the action had been seized by the government of Mexico in its own territory, it sent the property to this country for the purpose of sale, so that it might obtain the proceeds therefrom. It was held that our courts could not question the validity of the acts of the foreign government with respect to matters which arose within its territory and pursuant to which it acquired title to the property in question. A similar situation existed in Ricaud v. American Metal Co. (246 U. S. 304). But these cases have not the slightest application to the facts appearing in this case, where the foreign government has no claim of ownership of the moneys on deposit in the Bank of Montreal belonging to the Bank of Mexico and in fact makes no such claim. It is clear, therefore, that this case does not fall within any of the provisions of international law which would prevent this court from exercising jurisdiction over the defendant Caturegli. This question was considered in a leading case in England. In Gladstone v. Musurus Bey (1 H. & M. 495, 503) the court said: "It appears to me that the bank will be amply protected, because, if the Turkish Ambassador should present his cheque, the Bank, under the order of this Court, would decline to honour it; and the only mode in which the Ambassador could compel payment, would be by taking App. Div.] First Department, July, 1920. some process of his own. I feel a very strong opinion, that, if he chose to take that course, the position of things would be entirely altered. He would be submitting himself to the jurisdiction of our tribunals; and in that case English tribunals would have the power of saying, for that purpose only, that they would administer justice between all parties concerned in a litigation which he had himself commenced." To the same effect is Republic of Mexico v. Arrangois (3 Abb. Pr. 470). This court, therefore, has jurisdiction of the subject-matter of the action as well as of the parties. It seems to us that not only does the complaint set forth a cause of action, but that the plaintiff was entitled to injunctive relief restraining the prosecution of the action of Caturegli against the Montreal Bank. As to the motion for a receiver, it may be said that the funds which are the subject-matter of this action are now in the possession of a bank, which is presumably abundantly solvent for the protection of the rights of the various claimants if fortified by an appropriate injunctive order although it may be necessary, in case the plaintiff succeeds in this action, to appoint a receiver in the final judgment to carry into effect the objects of this action as outlined to some extent in Horton v. McNally Co. (supra, 330). In so far as the order appealed from denies the motion for a receiver, it is affirmed. All of the other orders and judgments appealed from should be reversed and the various motions made in behalf of the plaintiff should be granted, with costs to plaintiff. CLARKE, P. J., LAUGHLIN, DOWLING and SMITH, JJ., concur. Judgments of December 18, 1919, and orders of October 11 and 10, 1919, reversed and motions denied, with costs. Orders of August 30, 1919, reversed, without costs, and motions granted, with ten dollars costs, with leave to defendants to withdraw demurrers and to answer on payment of said costs. Order of June 27, 1919, affirmed, without costs. First Department, July, 1920. [Vol. 192. BERLIN CONSTRUCTION COMPANY, Respondent, v. HERMAN W. HOOPS, Appellant. Fraud First Department, July 2, 1920. action by creditor of corporation against president thereof - statement by defendant in reference to paying bills of corporation as misstatement of facts - refusal of defendant to further finance corporation as evidence of past fraudulent representation - right of court to set aside verdict because it might not have reached same result. In an action for fraud and deceit it appeared that the plaintiff had entered into a contract with a corporation of which the defendant was the president, but that not being satisfied with the financial responsibility of the corporation, the plaintiff interviewed the defendant and was told by him that he was furnishing money and that our bills would be paid when due; that he had arranged for the moneys with which the bills would be paid; that the defendant did not participate actively in the management of the corporation, but had made arrangements to finance the concern and that he had ample funds in the bank with which to do it, and that the said corporation failed to pay the amount due on the contract. Held, that the only material statement of facts appearing in the statements made by the defendant is that the defendant " had arranged for the moneys with which the bills would be paid,” and unless that can be construed as a declaration that the defendant was under a contract obligation with his corporation to furnish it such funds, it is not a misstatement of any fact, but is consistent with a construction that the defendant at that time possessed funds sufficient to pay the bills. If for reasons happening in the future the defendant in good faith refused to finance his corporation, such future conduct is not conclusive evidence of a past fraudulent representation. A verdict should not be set aside simply because the court, upon the evidence before it, may not have reached the same result as that which the jury reached. DOWLING and PAGE, JJ., dissent. APPEAL by the defendant, Herman W. Hoops, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day of September, 1919, granting plaintiff's motion for a new trial, and setting aside the verdict rendered in defendant's favor. App. Div.] First Department, July, 1920. George D. Zahm, for the appellant. Osmond K. Fraenkel of counsel [Louis Werner, attorney], for the respondent. GREENBAUM, J.: Upon the first trial of this action the court dismissed the complaint at the close of the entire case. The judgment entered upon the dismissal was reversed upon appeal by a divided court. (185 App. Div. 277.) This court held that the evidence clearly required the submission of the case to the jury." Upon the second trial the jury found a verdict for the defendant which the trial court set aside upon the ground that the verdict was against the weight of the evidence. A reading of the charge of the learned court shows that it was eminently fair and very favorable to plaintiff's case. The only exception that was taken thereto on behalf of the plaintiff was one that was not well founded. Not only was the charge absolutely fair to the plaintiff, but the defendant was seriously handicapped by the refusal of the learned trial justice to permit certain questions bearing upon his intent to perpetrate a fraud upon the plaintiff and also other questions which would have a bearing upon his intent, such as whether he furnished any money to the Columbian Marble Company, all of which was excluded and which if the verdict had gone against the defendant would have constituted reversible errors. The complaint was predicated upon fraud. It appears that on or about the 30th day of September, 1909, plaintiff had entered into a contract with the Columbian Marble Company, which was engaged in business at Rutland, Vt., and of which the defendant was the president, whose office, however, was in the city of New York. It further appears that as a matter of fact the defendant had no personal knowledge whatever of the details of the business and did not participate therein, but that he was the person who was to finance the affairs of the Columbian Marble Company. The complaint alleges that after the making of certain contracts with the Columbian Marble Company, the plaintiff interviewed the defendant and requested him to guarantee them. It is then alleged that "the defendant refused to guarantee First Department, July, 1920. [Vol. 192. the said agreements, but with the intent to deceive and defraud plaintiff, and in order to induce the plaintiff not to cancel the said agreements and to construct the buildings, and to render the work, labor and services and furnish the materials mentioned in the aforesaid agreements on credit and on the terms and conditions mentioned in the aforesaid agreements, the defendant did falsely represent to the plaintiff, that the money with which to make to the plaintiff the payments provided for in the said agreements had already been arranged for." * * * The complaint also contains the other usual allegations appropriate to an action for fraud and deceit. The conversation in the course of which the alleged misrepresentations were made was held between the plaintiff's president and the defendant at the latter's office in New York city. The testimony of the plaintiff as to what the defendant said is as follows: "I said to Mr. Hoops that on the evening before, at Rutland, I had signed two contracts with Mr. White, vice-president, and Mr. Underhill, general manager, of the Columbian Marble Company, and as I was not satisfied in my own mind as to their financial ability to meet our payments when due I had asked them if they could give me some reference. I told Mr. Hoops that Mr. White told me that Mr. Hoops of New York was financing the company, furnishing money, and that I could refer to him, and if I wasn't satisfied with what he told me that I could cancel the contract. I told Mr. Hoops that I asked Mr. White and Mr. Underhill to give me that in writing, which they did. * * * I showed Mr. Hoops the two contracts and the letter which referred me to him, and I asked him if he could what he could tell me in regard to the financial condition of the company. And he told me that he was furnishing money and that our bills would be paid when due; that he had arranged for the moneys with which the bills would be paid." The complaint shows that the total amount due under the contract from the Columbian Marble Company to the plaintiff was upwards of $12,000, of which upwards of $7,000 had been paid, leaving a balance of $5,000 still owing to the plaintiff. The defendant testified that he had made arrangements to |