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FIRST DEPARTMENT, MARCH TERM, 1898.

perform, namely, consulting with their principals; attending to their principal's banking business, credits and insurance; going about to see their principal's customers, fixing wages, and talking over the general affairs of the principal's business. We think these witnesses were thus sufficiently qualified to speak upon the general subject of the services of confidential agents and the value of such services.

The more important ground of objection is the second; but we think that even that ground is sufficiently answered by the rule with regard to expert testimony in exceptional cases, which was laid down in Edegcomb v. Buckhout (146 N. Y. 332). The present case is analogous to that in its peculiar and exceptional character. It would, of course, be impossible to find any person who had rendered, or employed a person to render, precisely the same services as those rendered by the plaintiff to his uncle. The best that could be done, in such a case, would be to call those who were acquainted with services of a somewhat similar character and with their value. As was said by Judge PECKHAM, in the case last cited, "probably it would be impossible to show the value of such services by any individual who had herself performed precisely the same kind of services for another individual situated exactly as was the deceased, and in substantially the same neighborhood. Obviously, all that the plaintiff could do, in order to show the value of her services, was to call those people who had been engaged in the hiring of individuals to do the same class of services in some respects, although not to the same extent or precisely of the same character as those which were performed by the plaintiff. It was, as we have said, the best that the situation permitted plaintiff to do; in other words, the best evidence that the nature of the case afforded, and, therefore, it was not incompetent because it left the value of plaintiff's services as actually rendered somewhat indefinite and vague."

* * *

Substantially the same rule was laid down in Heffron v. Brown (155 Ill. 322); Fowler v. Fowler (70 N. W. Rep. 336); Storms v. Lemon (7 Ind. App. 435), and Chamness v. Chamness (53 Ind. 301). In some of these cases, even the plaintiff was allowed, under the stress of somewhat similar circumstances, to give his or her own opinion, in a very general way, as to the value of the services rendered; and the action of the court of first instance in permitting APP. DIV.-VOL. XXVII.

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[Vol. 27. this was not deemed reversible error. We think the reasonable rule, which should govern an appellate court in considering the effect of the admissibility of such testimony, is well stated in State v. Hendel (35 Pac. Rep. 839), as follows: "The question as to the admissibility of expert testimony must depend largely, if not entirely, upon the circumstances of each particular case, and where it is apparent, not only that no injustice had been done, and that the exigencies of the case seem to warrant or require the admission of such testimony for a proper and satisfactory presentation of the facts to the jury, such admission is not error." The same view is suggested by Judge EARL's criticism of a question which introduced expert testimony in O'Neil v. Dry Dock, E. B. & B. R. R. Co. (129 N. Y. 129). After criticising the question there under consideration, he said, "yet we cannot say that the expert witness did not know more about the subject of injury than ordinary jurors can generally be supposed to know. The question is barely competent and probably was not harmful; and the judgment should not, therefore, be reversed because the judge allowed it to be answered."

We think that the appellant's counsel misapprehends the hypothetical question, when he insists that the witnesses should have at least been limited, even under the rule laid down in the Buckhout case, to their peculiar knowledge of the value of the plaintiff's services as a private secretary, and that they were not qualified to testify "to the value to plaintiff of being induced to leave his home, change his name, reading to his uncle, sitting up with him," and so on. The hypothetical question does not call for the opinion of the witnesses as to the value of each of these separately specified acts. All the attendant circumstances were embraced within the assumptions, not for the purpose of asking an opinion as to each separate matter so assumed, but for the purpose of illustrating, in a general way, the services as to which an opinion was sought, namely, the services rendered by the plaintiff as his uncle's confidential agent. Counsel had a right to indicate to the witnesses just what kind of a confidential agent the plaintiff was; and all the attendant circumstances were a proper preface to the main assumptions as to such services. The witnesses knew the value of the services of a confidential agent under other circumstances, partly similar and partly varying, but of the same general character. It certainly did no harm to call their

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FIRST DEPARTMENT, MARCH TERM, 1898.

attention to the exceptional circumstances of the present case and to permit them to apply their general experience thereto so far as the variation from more familiar circumstances would permit.

It is quite evident, however, that the jury did not treat this testimony as controlling, or even as especially valuable. The witnesses in question estimated the plaintiff's services at about twice as much as the jury did. It may fairly be presumed, therefore, that the jury took all the testimony and weighed it in a moderate and conservative way; and that this expert testimony furnished but a slight basis for their just estimate of what upon the whole was a reasonable allowance.

We do not think that the admission of this testimony was reversible error. The situation was a difficult one; the exigencies of the case afforded reasonable ground for the trial justice's action; and it is apparent that no injustice resulted therefrom.

As to the costs, it is sufficient to say that the trial justice, upon evidence which was satisfactory to him, made the certificate required by section 1836 of the Code of Civil Procedure. This certificate was subsequently amended upon affidavits which the appellant has not chosen to present to us. We cannot say, therefore, that this

amended certificate was unwarranted. The defendant is concluded thereby upon the question of costs.

Having properly awarded costs under section 1836, it was within the discretion of the trial justice, in a difficult and extraordinary case, to grant an extra allowance. This was clearly such a case, and that discretion was fairly exercised.

The judgment and order denying the defendant's motion for a new trial should, therefore, be affirmed, with costs.

VAN BRUNT, P. J., RUMSEY, O'BRIEN and INGRAHAM, JJ., concurred.

Judgment and order affirmed, with costs.

FIRST DEPARTMENT, MARCH TERM, 1898.

[Vol. 27.

JACOB HIRSHFELD, Suing on his own Behalf and on Behalf of all other Creditors of THE MADISON SQUARE BANK, Appellant, v. JOHN BOPP and Others, Respondents, Impleaded with MILES M. O'BRIEN and JAMES G. CANNON, as Receivers of THE MADISON SQUARE BANK, Appellants.

A representative action, by one creditor of a banking corporation in the interest of all, to enforce the liability of stockholders for debts - effect of the transfer of the plaintiff's claim where the transferee is not substituted as plaintiff — effect, upon the continuance of the action, of releases executed by the transferee - the Banking Law of 1892 (Chap. 689, § 52) applies to corporations created before it went into effect the liability is thereby extended to stockholders of banks not of issue- constitutionality of the act as to banks not of issue—its application to a bank incorporated under Laws of 1838, chap. 260 - —a failure to issue execution and have it returned unsatisfied excused by an injunction order.

An action brought by one creditor of a bank, in his own behalf and on behalf of all other creditors thereof, to enforce the individual liability imposed upon stockholders of such a corporation by the Banking Law (Laws of 1892, chap. 689, § 52) may, notwithstanding the plaintiff's assignment of his individual claim pending the action, be continued by him in his own name, under section 756 of the Code of Civil Procedure; on behalf of the other creditors, until such time as his assignee may be substituted for him. Releases executed by the plaintiff's assignee to the defendants do not change the situation, as such releases only operate upon the plaintiff's original claim, and do not affect the claims of the other creditors represented by the plaintiff in the action brought on his own behalf and on behalf of such other creditors. Section 52 of the Banking Law, imposing an individual liability for the debts of every banking corporation upon the stockholders thereof, applies to a monied corporation which was created before the Banking Law went into effect. The fact that such act of 1892 creates a liability on the part of stockholders in banks not of issue, which never existed before, does not render it unconstitutional as to the stockholders of such a bank organized in 1882, as the provision of the Constitution of 1846, incorporated without change into the Constitution of 1894, providing that all general laws and special acts for the formation of corporations may be altered from time to time or repealed (Art. 8, § 1), must be deemed from the time of its adoption in 1846 to have modified the act (Chap. 260 of 1838) under which the bank in question was incorporated in 1882.

The Banking Law embraces "banking associations" incorporated under chapter 260 of the Laws of 1838, as such an association is a "monied corporation" within the meaning of section 2 of the Banking Law.

Where a preliminary restraining order and final judgment dissolving a banking corporation each contains a clause forbidding creditors to proceed against the

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FIRST DEPARTMENT, MARCH TERM, 1898.

corporation, it is not necessary that a creditor should, before bringing an action to enforce the individual liability of the stockholders, issue an execution against the corporation and have it returned unsatisfied.

APPEAL by the plaintiff, Jacob Hirshfeld, suing on his own behalf and on behalf of all other creditors of The Madison Square Bank, and by the defendants, Miles M. O'Brien and James G. Cannon, as receivers of The Madison Square Bank, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 24th day of August, 1897, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff's complaint upon the merits.

This action was brought to enforce the liability of the stockholders of the Madison Square Bank, under section 52 of the Banking Law (Laws of 1892, chap. 689).

Samuel Untermyer, for the defendant appellants.

Charles A. Boston, De Lagnel Berier, Franklin Pierce, Albert Stickney, Julius J. Frank, William Lloyd Kitchel, Herbert Parsons, A. J. Simpson, Lawrence E. Sexton, Freling H. Smith, Samuel S. Thomas, Frederick B. Van Vorst, Joseph Fettretch, Hoffman Miller, John A. Straley, William B. Putney and Benno Loewy, for the respondents.

BARRETT, J.:

It does not seem necessary, for the disposition of this appeal, to consider what are, ordinarily, the rights of a creditor plaintiff to discontinue a representative action before his fellow-creditors have, by judgment or otherwise, obtained an interest therein. There are special circumstances here which render the general rule of no importance. Hirshfeld's agreement with the receivers bound him not to discontinue to the prejudice of the other creditors; and we so held in the Clirehugh Case (5 App. Div. 202). But, in truth, Hirsh

feld never sought to discontinue. He assigned his claim, but did not refuse to proceed with the suit. The real question is, whether he has legal capacity to go on with it. That question, too, should be regarded as settled by the Clirehugh decision. If Hirshfeld had no standing in court, the application to remove him would not have been denied. It would have been unwarrantable to insist upon his