(182 N.Y.S.) ted to her common-law remedy of ejectment, if she desired to resume possession, and the court was without jurisdiction to entertain the proceeding. The final order is reversed, and the petition is dismissed, with costs to the appellant. All concur. In re WILLIAMS, Commissioner of Public Works. In re EAST BRIGHTON AVE. IN CITY OF SYRACUSE. (Supreme Court, Special Term, Onondaga County. May 26, 1920.) Eminent domain 265 (1)-Landowners entitled to trial costs in proceeding before commissioner of condemnation. Where proceeding to condemn land to straighten a line of a street was commenced by the service of a petition, and the owners of the property affected did not serve any answer, and petitioner did not make or serve any offer, the attorneys for the different owners are entitled, under Code Civ. Proc. § 3372, to a trial fee of $30 as for a trial of an issue of fact and $10 as for a trial occupying more than two days, and it is immaterial whether, technically, the hearing before the commissioners was a trial or an assessment of damages. In the matter of the application of Richard B. Williams, Jr., Commissioner of Public Works of the City of Syracuse, for the appointment of commissioners of condemnation in the matter of straightening the west line of East Brighton avenue, opposite East Newell street, in the City of Syracuse. On application to confirm report of commissioners. Landowners entitled to trial costs. This is an application to confirm the report of commissioners in a proceeding to acquire title to the property rights of the owners, and the only matter in dispute is the question of whether the attorneys for the different owners are entitled, under the provisions of section 3372 of the Code of Civil Procedure, to a trial fee of $30 as for a trial of an issue of fact and $10 as for a trial occupying more than two days. This proceeding was commenced by the service of a petition, and the owners of the property affected did not serve any answer. The petitioner did not make or serve any offer. Evidence was produced before the commissioners as to the value of the land sought to be acquired and damage to the remaining property. The property owners appeared before the commissioners and offered evidence in regard to the value of the property. The commissioners made their report, which is now before this court for confirmation. Edmund H. Lewis, Corp. Counsel, of Syracuse, for petitioner. ROSS, J. Upon examination of section 3372, it seems to me somewhat strange that any question should ever have arisen in regard to the right of the landowners in a case similar to this to tax the items heretofore mentioned. The section referred to provides as to the procedure in a case wherein the petitioner makes an offer to purchase the property, and as to the effect of such offer on the question For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes of costs, whether accepted or not accepted. It then provides for the situation herein presented in the following language: "Or, if no offer was made, the court shall, in the final order, direct that the defendant recover of the plaintiff the cost of the proceeding, to be taxed by the clerk at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the Supreme Court, including the allowances for proceedings, before and after notice of trial, and the court may also grant an additional allowance of costs, not exceeding five per centumupon the amount awarded." It is not a question as to whether technically such hearing before the commissioners was a trial or an assessment of damages. The Code, as it seems to me, has specifically provided that the defendant, in the case herein presented, is entitled to the costs claimed; but, if it were necessary, I would have no hesitation in deciding that there was in fact a trial. Suppose the case of an offer being made and declined. The evidence presented to the commissioners in no wise. differs from the evidence presented when no offer is made. The only issue of fact in these cases presented is the question of the value of the property sought to be condemned, and it is a matter of common knowledge that such an issue may be a most important one. It may involve a difference of a value amounting to thousands of dollars, to be determined by the commissioners, and requires as careful preparation and as thorough consideration as the determination of the issues raised by a general denial in the ordinary commercial case, or an issue raised by a plea of payment. I quote in this connection, from the dissenting opinion of Justice Kellogg, in Village of St. Johnsville v. Cronk, 55 App. Div. 633, 67 N. Y. Supp. 419. The facts in this case were similar to the facts in the instant case. I quote the following language of the learned jus tice: "It seems to me very clear that the Legislature intended, when the plaintiff failed to make any offer, or failed to make a sufficient offer, thus necessitating the creation of a tribunal, to wit, a court presided over by commissioners, to hear the proofs and arguments and to give judgment, which might be appealed from, that this was to be regarded as a trial." See Matter of Brooklyn Union El. R. R. Co., 176 N. Y. 213, 218, 68 N. E. 249, which case approves of the dissenting opinion of Mr. Justice Kellogg, above quoted, and disapproves of the decision in the case in which it was written. As stated by one of the attorneys appearing for defendants, section 3372 of the Code "opens up a way for the city to avoid costs of a trial by making a fair offer for the property before trial is had. The fact that the city does not see fit to avail itself of this privilege, and therefore offers no opportunity or alternative to the property owner, except to appear and contest the issues, cannot be availed of by the city to prevent the full allowance of costs as intended by the statute." An order may be prepared in accordance herewith. (182 N.Y.S.) PEOPLE, by PHILLIPS, State Superintendent of Insurance, v. POLISH UNION OF AMERICA. GLADYSZ et al. v. POLISH UNION OF AMERICA, Inc., et al. (Supreme Court, Appellate Division, Fourth Department. May 21, 1920.) Judgment 675 (1)—Members of benefit association bound by order to state superintendent to take possession of property. Where members of a benefit association appeared, and the association itself was represented, on a rehearing on the merits in a proceeding by the state superintendent of insurance for an order to take possession of the property and conduct the business of the association, such members are bound by orders entered. Appeal from Special Term, Erie County. In the matter of the application of the People of the State of New York, by Jesse S. Phillips, as State Superintendent of Insurance, for an order to take possession of the property and conduct the business of the Polish Union of America. Proceeding by Jan Gladysz and others, individually and as members of the Polish Union of America, unincorporated, against the Polish Union of America, Incorporated, and others. From adverse orders and a judgment, Jan Gladysz and others appeal. Judgment and orders affirmed. Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ. F. M. Joslyn, of Buffalo, for appellants. Clarence C. Fowler, of New York City, and Edward R. O'Malley, of Buffalo, for respondent. PER CURIAM. We are of the opinion that the undisputed facts stated in the petition, affidavits, and papers in the liquidation proceedings amply justified the orders of the Special Term under which the superintendent has taken possession of the property of the Association. We are also of opinion that the appellants are bound thereby. Not only was the Association represented on the hearings, but these appellants themselves appeared upon a rehearing of the matter upon the merits, as the order of Justice Taylor at Special Term provided. The orders in the liquidation proceeding being in full force and effect, as was stipulated by appellants upon the trial in the equity cause, the trial court correctly disposed of the action by dismissing the complaint. The orders appealed from should therefore be affirmed, with $10 costs, and the judgment in the equity action affirmed, with costs. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (191 App. Div. 820) HOLMES et al. v. CRANE et al. (Supreme Court, Appellate Division, First Department. May 14, 1920.) 1. Corporations 310 (2)-Directors liable to company for ultra vires acts only when they participate therein. Though directors may be liable to stockholders for depreciation of value of stock through ultra vires acts, even when they are not liable to the corporation, a director is not liable to either, unless it is shown that he participated therein or negligently omitted to perform his duty. 2. Corporations 310 (2) -Directors not liable for acts in good faith not ultra vires. Aside from liability for ultra vires acts, directors of a corporation are not liable for losses caused by a mere error of judgment, when they act in good faith. 3. Corporations 312 (7) —Stockholder ratifies ultra vires acts by accepting benefits. A stockholder cannot have redress in equity against officers, when, with full knowledge of the material facts, he has assented, though under protest, to ultra vires acts, and has accepted the benefits thereof. 4. Corporations 312 (2) -Depositing in trust company organized ultra vires by corporation held not to render directors liable. A deposit by directors of the funds of the corporation in a trust company organized by the corporation ultra vires before the directors took office is not an ultra vires act for which the directors are liable. 5. Corporations 312 (7)-Stockholder held not to have knowledge of ultra vires act by representation at meeting. A report at a stockholder's meeting, which showed merely ownership of bank stock, does not give notice that the stock was acquired ultra vires, so as to impute knowledge thereof to stockholders represented by proxy, even if such representation charges them with knowledge of the report. 6. Corporations 320 (11) -Directors held to have been acting in good faith and not liable to account. In a suit against directors of a corporation for an accounting, evidence held to show that the directors acted in good faith and without corrupt motive in assenting to liquidation of a trust company in which the corporation was a stockholder, though they accepted securities at more than their value, as evidenced by small isolated sales, but not at more than their extrinsic value, or than the value at which they had subsequently sold, so that the directors were not liable to account to the stockholders. 7. Corporations 377 (1)-Dissolution of trust company by stockholding corporation held not ultra vires. Where a corporation had acted ultra vires in forming a trust company, whose stock it largely owned, it was not ultra vires to dissolve the trust company, and thereby undo the previous ultra vires act. Page, J., dissenting. Appeal from Special Term, New York County. Action by Robert Holmes, individually and as trustee, and others, against Clinton H. Crane and others. From a judgment dismissing. the amended complaint on the merits, plaintiffs appeal. Affirmed. See also, 167 N. Y. Supp. 735. Argued before CLARKE, P. J., and LAUGHLIN, SMITH, PAGE, and MERRELL, JJ. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) Ingraham, Sheehan & Moran, of New York City (Samuel F. Moran, of New York City, of counsel, and Louis B. Grant, of New York City, on the brief), for appellants. Dexter, Osborn & Fleming, of New York City (Matthew C. Fleming, of New York City, of counsel), for respondents Crane and St. Joseph Lead Co. George Edwin Joseph, of New York City (Henry C. Quinby, of New York City, on the brief), for respondent Camp. David T. Davis, of New York City, for respondents Jones, Cornell, Marshall, and Symmes. LAUGHLIN, J. This is an action by minority stockholders of the St. Joseph Lead Company, which will be referred to as the company, a domestic corporation, in the right of the corporation, against Clinton H. Crane and Hugh N. Camp, two of its directors, and the executors of Dwight A. Jones, a deceased director, for an accounting for property and funds of the corporation used ultra vires, through their alleged neglect and failure to perform their duties as directors, and through alleged violations of law by them as officers and directors of the company. The number of directors prescribed in the certificate of incorporation was 7, and it is stated in the points that at all the times in question there were 11 directors. Therefore these 3 directors, who for brevity will be referred to as the defendants when all are meant, at no time constituted a majority of the board. A demurrer to the original complaint for insufficiency was sustained at Special Term on the ground, among others, that in so far as the complaint was predicated on ultra vires acts, it was not alleged that the directors sought to be charged with responsibility therefor participated therein, and his opinion is reported in the New York Law Journal of January 3, 1916. An amended complaint was then served, and a like demurrer thereto was overruled at Special Term, and the order was affirmed by this court. 176 App. Div. 914, 162 N. Y. Supp. 1123. The amended complaint sufficiently charged the defendants with responsibility for the alleged ultra vires acts of the corporation. It was therein alleged that the ultra vires acts were brought about through fraud and conspiracy on the part of the defendants, as well as by their acts as directors and officers and their omission to perform their duties as such. The learned trial court found that certain acts of the board of directors involving the appropriation of property and funds of the corporation were ultra vires the corporation, but failed to find that the defendants were responsible therefor, or entered into a conspiracy or were actuated by fraudulent motives as charged, and found affirmatively that the defendants did not dominate or control the corporation or its board of directors, and did not cause the ultra vires acts and acted in all respects in good faith, and in what they believed to be for the best interests of the company, and derived no private or secret advantage from any of the acts complained of; that the company sustained no damages thereby; and that the plaintiffs acquiesced in and ratified the ultra vires acts. The only findings made by the trial court which are challenged by |
