(195 N.Y.S.)

forwarding agents paid the freight charges for its transportation to Buffalo. The defendant had no interest in, control of, or responsibility for the grain prior to its delivery to the defendant in its cars; prior to that delivery the plaintiff certainly was not the defendant's agent as to that grain, and the defendant was not responsible to any one for plaintiff's acts relative thereto. It is very difficult to see how it could be successfully argued that the plaintiff acted as agent or representative of the defendant when it paid the commissions to the forwarding agents. While it is true that the plaintiff promised that it would not pay such commissions out of its charges for elevation, etc., of one cent per bushel, and it may be that a violation of that promise is a federal offense, yet how does such offense create any liability, criminal or otherwise, against the defendant? If the defendant had no knowledge of such wrongful act, it is very clear that no possible liability could be created by the payment of plaintiff's claim.

Does the fact that defendant now knows that the plaintiff has paid such commissions legally authorize defendant to retain the $1,535.59 that it has collected for the plaintiff's service in handling the grain? What is to become of such money? Does the fact that defendant now knows of plaintiff's payment of such commissions give defendant title to such money? Whatever offense was committed was committed by the paying of the commissions some time in 1921, with which act defendant was in no wise connected. By paying the moneys now in defendant's hands to the plaintiff, it is inconceivable how defendant could be said to aid, abet, or assist plaintiff in the commission of a violation of the federal statute in 1921. It is very clear that the defendant up to the present time has incurred no liability, criminal or otherwise, by plaintiff's paying such commissions. The criminal act of rebating, if committed at all, was complete in 1921.

In the absence of some testimony connecting defendant with the plaintiff's act of paying the commissions, the conclusion is reached that such payment was not made by the plaintiff as defendant's agent, that defendant is not responsible therefor, and that the paying of the moneys in defendant's possession, collected of the shipper, to the plaintiff for elevating the grain, in pursuance of a judgment of the court, would not create any liability, civil or criminal, against it.

Verdict is directed in favor of plaintiff against defendant for $1,535.59. which will be entered by the clerk, and an exception noted for the defendant.

Ordered accordingly.

(119 Misc. Rep. 63)

DOLL & STUFFED TOY MANUFACTURERS' ASS'N v. IDEAL NOVELTY & TOY CO.

(Supreme Court, Appellate Term, First Department. July 12, 1922.) Corporations 370(1)—Corporation cannot be member of membership corporation.

In view of General Corporation Law, § 10, providing that no corporation shall possess any corporate powers not given by law or not necessary to the exercise of the powers so given, and section 4, providing that a certificate of incorporation must be executed by natural persons, a corporaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

tion other than one engaged in gathering information from members under Membership Corporation Law, § 41, cannot legally become a member of a membership corporation.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by the Doll & Stuffed Toy Manufacturers' Association against the Ideal Novelty & Toy Company. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed.

Argued June term, 1922, before GUY, BIJUR, and McCOOK, JJ. George L. Cohen, of New York City, for appellant.

Joseph, Demov & Feinstein, of New York City (Abraham L. Feinstein, of New York City, of counsel), for respondent.

GUY, J. The plaintiff corporation sued to recover dues from defendant, alleged to be a member of plaintiff membership corporation, and also to recover assessments alleged to have been duly levied by plaintiff corporation upon defendant as such member. The answer denies the material allegations of the complaint, including the allegation of defendant's membership, and as separate defenses alleges that on April 1, 1921, defendant resigned from membership in said plaintiff corporation and withdrew therefrom, by presenting its resignation in writing and tendering dues for the month of March, 1921, and as to the second cause of action alleges that the levying of said assessments was illegal, and plaintiff had no power to levy an assessment against members.

It is unnecessary to consider the separate defenses, as the legality of defendant's membership in the plaintiff corporation is distinctly placed in issue by the denials contained in the answer. During the trial and at the close of the case defendant moved to dismiss the complaint, on the ground that the corporation could not legally become a member of the membership corporation. Section 10 of the General Corporation Law (Consol. Laws, c. 23) provides:

"No corporation shall possess or exercise any corporate powers not given by law, or not necessary to the exercise of the powers so given."

Section 4 of the General Corporation Law provides:

"A certificate of incorporation must be executed by natural persons." The only provision in the Membership Corporations Law (Consol. Laws, c. 35) for the admission of corporations as members is contained in section 41 of said statute, which applies to corporations engaged in the gathering of information and intelligence for the use of the members in connection with the publication thereof, and plaintiff does not come within the provisions of said section.

It is quite evident, therefore, that the statute contemplated only membership on the part of such persons, natural persons, as under the provisions of section 4 were qualified to sign the articles of incorporation, except as modified by the provisions of section 41, as heretofore stated. As defendant did not and could not, under the statute, be legally admitted to membership in the plaintiff corporation, plaintiff

Sup. Ct.)

JOHNSON V. HEIDENFELDER
(195 N.Y.S.)

failed entirely to make out a cause of action, and the motion to dismiss should have been granted.

Judgment reversed, with $30 costs, and complaint dismissed upon the merits, with costs, with leave to defendant to appeal to the Appellate Division, First Department. All concur.

JOHNSON v. HEIDENFELDER.

(Supreme Court, Appellate Term, First Department. July 12, 1922.)

1. Courts 189(14)-Setting aside judgment prerequisite to new trial in Municipal Court.

Under Municipal Court Code, § 129, subd. 3, unless the judgment is set aside, no new trial can be had.

2. Courts 189(15)—Municipal Court not authorized to grant new trial on motion to set aside order of arrest.

On defendant's motion in Municipal Court to set aside an order of arrest and for other and further relief, the trial judge was not authorized, 40 days after entry of judgment and 20 days after the date within which a motion to set aside a judgment could be made returnable, to set aside the judgment and grant a new trial.

3. Fraud 60-Expenses for storage held not recoverable.

In an action by buyer of an automobile against seller for fraudulent misrepresentations, buyer was not entitled to recover expenditures for storage of the automobile.

Cross-appeal from Municipal Court, Borough of Manhattan, First District.

Action by Thelma C. Johnson against John P. Heidenfelder. From an order setting aside a verdict for plaintiff and granting a new trial, both parties appeal. Judgment and order reversed, and new trial ordered.

Argued June term, 1922, before GUY, BIJUR, and McCOOK, JJ. Holley & Oxenberg, of New York City (S. Joseph Oxenberg, of New York City, of counsel), for plaintiff.

Hardy, Stancliffe & Whitaker, of New York City (Noah A. Stancliffe and William F. McDermott, both of New York City, of counsel), for defendant.

PER CURIAM. These are cross-appeals-one by plaintiff from order setting aside "verdict" and granting a new trial; the other by defendant from judgment in favor of plaintiff.

Plaintiff recovered judgment for $500 and costs in this "action for fraud and deceit" in the purchase by her of an automobile from defendant. Plaintiff moved at the close of the trial for a body execution, and the judgment, dated June 17, 1921, accordingly contained a direction for the issuance of a body execution. On July 8 defendant procured an order to show cause why an order should not be made vacating and setting aside the "order of arrest granted," and for such other and further relief, etc. Defendant at the same time appealed from the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

judgment. On August 12 the court set aside the "verdict" and ordered a new trial.

[1] The case was tried without a jury, so that there was no verdict, and, unless it be held that the setting aside of the "verdict" set aside the judgment which had been entered on or about June 17, plaintiff was not seriously prejudiced, for apparently in so far as the order granted a new trial it would be nugatory in face of the existing judgment; in other words, there could be no new trial had unless the judgment was set aside. Municipal Court Code (Laws 1915, c. 279) § 129, subd. 3.

[2] Assuming, however, that the order may be deemed ore setting aside the judgment, and considering the matter on the merits, the order cannot be upheld. The defendant's motion was not to vacate the judgment, but to set aside the order of arrest granted pursuant to the judgment; that was the motion which plaintiff was called upon to oppose, and the mere fact that defendant asked for other and further relief did not authorize the judge of his own motion 40' days after the entry of the judgment, and more than 20 days after the date within which a motion to set aside a verdict or judgment could be made returnable, to set the judgment aside and order a new trial. In either view of plaintiff's appeal, the order should be reversed.

[3] Upon defendant's appeal from the judgment it appears that included in the award to the plaintiff is an item for storage of the automobile purchased by plaintiff from defendant and as a result of defendant's fraudulent representations. Defendant contends that the issue litigated was one for the recovery of damages for the fraud of the defendant, and that therefore it could not be held for storage of the car after delivery to plaintiff. However, plaintiff maintains that the evidence shows a rescission of the contract, that upon being informed of the fraud she offered to return the car to the defendant, that on defendant's refusal to receive the car she was put to the expense of storing it, and that under the circumstances defendant was chargeable with such expense. A reading of the testimony in the light of plaintiff's brief is convincing that plaintiff sought damages for the alleged fraud, and not a recovery as upon a rescission of the contract, and the trial judge correctly held that he had erred in fixing plaintiff's damages.

Judgment and order reversed, and a new trial ordered, without costs of appeal to either side.

LEVEQUE v. PELDA.

(Supreme Court, Appellate Division, Second Department. July 22, 1922.) Clerks of courts 67-Case on calendar at passage of statute entitled to remain.

Civil Practice Act. § 1557, subd. 3, as amended by Laws 1922, c. 144, applies only to causes placed on the calendar subsequent to March 22, 1922, when the act took effect, and a case on the calendar at that time was entitled to remain thereon until disposed of pursuant to Code Civ. Proc. §

977.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(195 N.Y.S.)

Application by Nelson Leveque for a writ of mandamus against Fred J. Pelda. From an order denying the application, plaintiff appeals. Reversed.

PER CURIAM. Order denying application for mandamus reversed on the law, without costs, and application granted, without costs. Subdivision 3 of section 1557 of the Civil Practice Act, as amended by chapter 144 of the Laws of 1922, applies only to cases placed on the calendar subsequent to March 22, 1922, when that act took effect. This case was on the calendar at that time, and was entitled to remain, thereon until disposed of pursuant to section 977 of the Code of Civil Procedure.

(202 App. Div. 223)

PERKINS v. MINFORD et al.

(Supreme Court, Appellate Division, First Department. July 14, 1922.) Sales 418(2)-Purchaser held entitled to damages for shortage by reason of appreciation to time of actual delivery.

Where sugar was to be delivered March 31st on a steamer to be furnished by the buyer, but the buyer requested the seller to obtain a steamer, and the sugar was not delivered until April 27th, at which time buyer discovered a shortage, buyer was entitled to damages as of the date of April 27th; the sugar having appreciated in value.

Clarke, P. J., dissenting.

Appeal from Supreme Court, New York County.

From a

Action by Bishop C. Perkins against Levis W. Minford, Eberhard L. Lueder, and Levis W. Minford, Jr., as copartners, etc. judgment entered on the verdict of a jury, directed by the court, plaintiff appeals. Modified and affirmed.

Argued before CLARKE, P. J., and LAUGHLIN, SMITH, PAGE, and GREENBAUM, JJ.

Carter, Ledyard & Milburn, of New York City (E. DeT. Bechtel, of New York City, of counsel, and A. D. Smith, of New York City, on the brief), for appellant.

Feiner & Maass, of New York City (Ira Skutch, of New York City, of counsel, and Benjamin F. Feiner, of New York City, on the brief), for respondents.

SMITH, J. The plaintiff by this appeal complains simply of the insufficiency of the judgment, claiming that the date upon which the court computed the damages was not the proper date. The plaintiff purchased of the defendants 10,000 bags of sugar, which were to be shipped from Cuba to New Orleans. According to the original contract in March, 1920, the plaintiff was to furnish the steamer. The Ward Line usually furnishes the steamers for transportation of freight between Cuba and New Orleans. The plaintiff was dissatisfied with the service that had been theretofore obtained from the Ward Line and asked the defendants if it were possible to get a steamer from some other line to carry the freight. To this the defendants assented

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes