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Opinion by Bradley, J.; Barker, have a frontage of 322 feet on BufHaight and Lewis, JJ., concur. falo river, and it is undisputed that
so much frontage is necessary to RAILROAD. EMINENT DO
petitioner, which already owns MAIN.
property adjacent to that in ques
tion. Appellant does an extensive N. Y. SUPREME COURT. GENERAL
transportation business upon the TERM FIFTH DEPT.
great lakes. This property is parIn re petition of the N. Y., L. & ticularly well adapted to appelW. RR. Co. for appointment of lant's Buffalo city business, which Commissioners to appraise lands of amounts to about 8 per cent. of its the Union Steamboat Co.
whole business, and in which it Decided Jan., 1885.
will probably suffer loss if com
pelled to move. Prior to the comA certified copy of the articles of association of a railroad company, showing that
mencement of these proceedings some of the requisite twenty-five names petitioner leased its road and transwere subscribed by persons other than ferred the operation of it for the those bearing the names so signed, Held, whole term of its existence to the to be prima facie evidence that the names
Delaware, Lackawanna and Westsubscribed were genuine, and that the signatures were authorized.
ern RR. Co., a Pennsylvania corIt is sufficient in that respect if the articles portion. A certified copy of peti
of association state the length of the road tioner's articles of incorporation
approximately. A railroad corporation may lease its prop
was read in evidence, which showerty and transfer its management to a
ed that of the twenty-six names foreign railroad company, even for the subscribed thereto, four purported whole term of its existence; and the fact
to be signed by persons other than of such lease does not take from the les
the owners of the names. The sor company the right to condemnation of land for its uses.
articles mentioned the termini of The selection of lands for its use is in the the road, and stated that the length
discretion of the corporation, and if the of the road and branches “is to be same is made in good faith and there is
about three hundred miles.” The a necessity of acquiring the lands, and the same are suitable, the courts will not
affidavit attached thereto stated interfere.
that “at least one thousand dollars Appeal by repliant from Special per mile for every mile of railway Term order confirming referee's re- proposed to be constructed-to wit, port and appointing commissioners three hundred miles, has *** been to fix compensation.
subscribed." The referee found Petitioner is a corporation or- that petitioner was duly created a ganized under the general laws of corporation under the general staNew York. These proceedings tutes of this State, and that were instituted to acquire title to the property in question was necesthe lands in question for the pur- sary for the uses set forth in the pose of erecting warehouses to re- petition. ceive freight, etc., in the operation George S. Hibbard, for applt. of petitioner's road. The premises Bowen, Rogers & Locke, for respt. Held, That by force of the sta- pensated for its loss by what it will tute prima facie proof was made receive for the property taken. by the certified copy of the articles Order affirmed, with costs and of association that all the names disbursements. subscribed were genuine, and that Opinion by Barker, J.; Bradley, the subscription of the four names J., concurs; Smith, P.J., and by others was duly authorized by Haight, J., not sitting. the owners of the same.
The length of the road was stated ASSIGNMENT FOR CREDIwith sufficient exactness within
TORS. the requirements of the statute. N. Y. SUPREME COURT. GENERAL The lease and transfer were with
TERM. FIRST DEPT. in the power of petitioner. Laws J. D. Kurtz Crook, applt., v. 1839, ch., 218 ; 93 N. Y., 616; 77 Leopold Rindskopf et al, respts. id., 234 ; 86 id., 107; 46 id., 641.
Decided Jan. 9, 1885. The fact that the lessee is a foreign
A general assignment for the benefit of crecorporation does not vitiate the
ditors, made by the members of a copartlease. 16 Abb., N. S., 219; 92 N. nership, including both the partnership Y., 324 ; 95 id., 175.
and their individual property, and con
taining a provision that, out of the reThe lease and occupation there- mainder of the assets, if any, after payunder by the lessee do not take ing the partnership debts, the assignee away petitioner's right to resort to should pay their individual debts, or, if the power conferred upon it by the
such remainder should be insufficient,
should apply the same pro rata to the law of its organization--to con
payment of such individual debts, is frau. demn lands necessary for the use dulent when the individual property and and operation of the road, and to liabilities of the assignors are unequal, for enable it to carry out the objects
the individual property of such assignors
should be applied to the payment of his of its formation, and to discharge individual liabilities ; and such an assignits duties to the public. The exe- ment may be set aside in a suit brought cution of the lease did not termin- for that purpose by a judgment creditor ate the corporate life. SON. Y.,
of the copartnership.
When a general assignment for the benefit 27; 6 Hun, 27; Mills Em. Dom.,
of creditors contains a fradulent direction, $ 63.
any creditor, even though the fraudulent The necessity and extent of the
direction itself may not directly prejudice
him, is entitled to relief under the general appropriation of land are for the
provision of the statute declaring an ascourts to determine. But when
signment made with the intent to hinder, the necessity is shown to exist, delay or defraud creditors to be void as and reasonable discretion has been
against the persons so hindered, delayed,
or defrauded, for every creditor is so deexercised by the corporation, and
layed and hindered by such an assignment, it has acted in entire good faith, as inasmuch as it stands in the way of the here, in its selection, the courts ordinary legal proceedings provided for will not interfere. 66 N. Y., 409;
the collection of debts. 43 id., 137; 77 id., 264. See 46 N. Appeal from judgment recovered Y., 555. Appellant can be com- on trial before the court.
Plaintiff was a judgment credi- devote additional property to the tor of a co-partnership, composed payment of his debts, or in any of the defendants Rindskopf and event that he would not be injured Rosenthal. Executions issued upon by this direction concerning the his judgment were returned unsa- | payment of the individual debts of tisfied, and he thereafter brought the partners, he could not comthis action to set aside as fraudu- | plain of it, inasmuch as he would lent a general assignment executed not be hindered, delayed, or deby said defendants, including both frauded thereby. the co-partnership and their indivi- Edward T. Bartlett, for applt. dual property. This assignment Adolph L. Sanger, for respts. contained a clause directing the as- Held, That the direction in the signee, out of the residue of the assignment in regard to the payassets remaining after the payment ment of the individual debts of the of the co-partnership debts, to pay assignors was fraudulent. the individual debts of the assign- That where an assignment of ors, or, if such residue should be the debtor's property is fraudulent insufficient, to apply the same pro on account of one or more direcrata to the payment of such indi- tions contained in it, there every vidual debts, and it was claimed creditor is certainly hindered or deby plaintiff that this direction layed by a fraudulent instrument. rendered the assignment fraudu- That the property of the debtors lent and void, inasmuch as it ap- in that manner is taken from their peared that the assignors individu- possession and control and placed ally owed unequal amounts of in charge of an assignee, to be disdebts, and that the property indivi. posed of and administered by him dually owned by each of them was in the settlement of the debts and unequal, and that their respective claims of creditors. That if the accounts with the co-partnership assignment is allowed to stand, were likewise unequal, and, there- then the creditors will necessarily fore, compliance with this direction be delayed until that settlement would, so far as the individual in- shall take place, and that delay will debtedness of one of the assignors result where one or more of the should exceed that of the other, be directions may be unlawful in hinto apply or appropriate a portion dering and delaying the creditor, of his individual interest in the as- although not actually defrauded, signed property to the payment of and that by the language of the stathe creditors of the other debtor tute (3 R.S., 6th ed., 145,9 1,) would for which such individual interest entitle him legally to complain of would not be legally liable. It was the validity and effect of the assignurged in support of the assign- ment. That he would be hindered ment that as plaintiff was a credi- and delayed in the ordinary course tor of the firm and not of either of of proceedings for the collection of the individual partners, and the ef- his debts by the interposition in his fect of the assignment might be to way of a fraudulent disposition of
the debtors' property, and by the Action for trespass, commenced terms of the statute would have in this court after discontinuance the right to insist upon the fraudu- of similar action in justice's court lent obstruction being removed. 25 on plea of title in defendant DexHun, 246; 20 How., 121 ; 5 Com., ter. 547; 11 Wend., 187; 4 Com., 211; The premises in question consist 16 N. Y., 484.
of about seven acres of land, lying Morrison v. Atwell, 9 Bos., 503 ; north of Fish lake, and in lot Scott v. Guthrie, 10 Bos., 408 ; U. No. 3 in the township of Lysander S. v. Victor, 16 Abb., 153; Cox v. and town of Granby. Feb. 10, Platt, 32 Barb., 127, criticized and
1882, defendants entered upon this not followed.
land and cut timber of the agreed Turner v. Jaycox, 40 Barb., 164; value of $2. Lot 3 contains 600 affd. 40 N. Y., 470, distinguished. acres, all of which is covered by
Judgment reversed and new trial Fish lake except about 67 acres ordered.
lying south and about 7 acres lying Opinion by Daniels, J.; Davis, north of the lake. Defendant P.J., concurs.
Dexter is the owner and in possesBrady, J., dissents, upon the sion of the 67 acres, and claims to ground that if the provision dis- be the owner and entitled to the cussed created a presumption of possession of the 7 acres. The fraudulent intent, it was not con
lake is about one mile in width clusive, 40 N. Y., 475, and that, between the two parcels of land. since it was shown that the part- Plaintiff received a deed of the nership property was not sufficient land in question June 11, 1877, to pay the partnership debts, the and fenced it, and has occupied it presumption was overcome. as farming land ever since. The
deed under which Mrs. Dexter acDEEDS. EVIDENCE. quired land on lot 3, and the preN. Y. SUPREME COURT. GENERAL
ceding deed, describe the subject TERM. FOURTH DEPT.
of the grant as a parcel of land
containing 67 acres, more or less, Daniel C. Case, applt., v. Weal
being on lot 3, commonly known thy Dexter et al., respts.
as the Fish lake lot. The other Decided Jan., 1555.
deeds in her chain of title, describe When a general description in a deed is in- it as, “All that certain piece or
consistent with a particular description, parcel of land situate, lying and
the particular description prevails. When an uncertainty arises, not from the being in the town of Granby,
terms used, but as to the subject to which county of Oswego, and known as they are applied, oral evidence is admis being lot No. 3, in the original sible to identify the subject.
township of Lysander, lying southAppeal from judgment in favor erly or southeasterly of Fish lake, of defendant, entered on verdict in Granby aforesaid, and commondirected by the court.
ly called 'the Fish lake lot,' supposed to contain 67 acres, be the contract or statute is inconsistent same more or less."
with a particular description, the Giles S. Piper, for applt. particular description prevails. 73 S. N. Dada, for respts.
N. Y., 621; 14 Pick., 128; 15 id., Held, That the direction of a 428 ; 6 Exch., 407 ; 26 Beav., 533 ; verdict for defendant was clearly id., 606 ; 3 Washb. on R. P., 400; erroneous; that the facts as to Leake Cont., 228 ; 1 Chitty Cont. plaintiff's occupation were undis- (11 Am. Ed.), 120 ; Sedg. on Stat. puted and prima facie are suffi- & Const. Law, 360. It cannot be cient to entitle him to recover. It said as matter of law that the cannot be said, as matter of law, deeds in defendant's chain of title that under her deeds Mrs. Dexter embrace the land in dispute. Unacquired title to the whole of lot aided by oral evidence, it must be No. 3, 600 acres, instead of 67 held as matter of law that they acres. In the deed to Mrs. Dexter, do not embrace the land in dispute. and in the preceding deed, the
The evidence of adverse posseswords used are, “And being on lot sion, given in behalf of defendant, 3,” which do not naturally em- is utterly insufficient to justify the brace the whole of lot 3. In ex- ruling that, as a matter of law, hibits A., B., C. and D. the words defendant Dexter and her grantors are, “And being known as lot No. had occupied the locus in quo ad3.” In all of the deeds constitu- versely for twenty years. ting defendant's chain of title the It is not entirely clear whether words of general description are the words, “commonly called the followed by words of particular Fish lake lot,” relate to great lot :3 description, to wit: “Lying south- or to the 67 acres of land in that erly or southeasterly of Fish lake, lot and south of the lake. This in Granby aforesaid, and common- language appeals to the common ly called the Fish lake lot, suppos- understanding for the meaning of ed to contain 67 acres of land, be the term “Fish lake lot,” and it the same more or less." These was competent to show that the words, particularly describing the 67 acre piece was commonly called location of the subject of the grant, “Fish lake lot."
When an uncerlocate it southerly of Fish lake, tainty arises, not from the terms which excludes the idea that the used, but as to the subject to grant embraced 7 acres of land a which they are applied, oral evimile away and north of the lake, dence is admissible to identify the though it is in the same great lot. subject. A name identifies nothThis language is very significant ing unless the thing to which it is in connection with the undisputed applied is ascertained. Perhaps fact that there are 67 acres of dry the general question, whether the land southerly of Fish lake, on lot 67 acre lot was commonly called, 3, embraced within the deeds in etc., may be too broad, but it may defendant's chain of title. When be shown what it was called, by a general description in a deed, whom it was so called, and on
Vol. 21-No. 2a.