CASES ARGUED AND DETERMINED

IN THE

SUPERIOR COURT

OF THE

CITY OF NEW YORK

AT GENERAL TERM,

CHARLES A. M. ESTES, PLAINTIFF AND RESPONDENT, v. WILLIAM W. BURNS, DEFENDANT AND APPELLANT.

Under the act for the formation of manufacturing and mining corporations, of 1848, one of the trustees who is a creditor of the company cannot recover his debt from a co-trustee, because of the failure of the company to make and file the annual report required by statute. The penalty for this neglect attaches to all the trustees, and one of them cannot claim the same as against the other. This question was fairly raised by the answer, and although the case does not show that the attention of the judge on the trial was specifically directed to it; yet nothing appears therein to estop the defendant from claiming the same, and it is a full defense to the action.

Before FREEDMAN, CURTIS, and SPEIR, JJ.

Decided January 31, 1874.

Appeal from judgment and order denying defendant's motion upon the minutes for a new trial.

The action was brought against defendant as trusteeof the Lippiat Silver Plating Company, to recover the amount of an alleged indebtedness from said company

Opinion of the Court by FREEdman, J.

for money loaned on March 24, 1871, and for work, labor and services as superintendent, from March 20 to June 8, 1871. The amount claimed as a loan was three hundred dollars, and that for services three hundred and twenty-six dollars. The jury rendered a verdict in favor of the plaintiff for two hundred and twenty-five dollars and twenty-five cents, and defendant appealed. Charles Matthews, for appellant.

Freeman J. Fithian, for respondent.

BY THE COURT.-FREEDMAN, J.-The two claims advanced by the plaintiff were submitted to the jury against the objection and exception of the defendant, who claimed that the plaintiff had failed in establishing any cause of action whatsoever. The jury disallowed the claim for loaned money, but for services a verdict for two hundred and twenty-five dollars and twentyfive cents was given. This verdict cannot be sustained. The evidence showed that the plaintiff was elected trustee of the same company on April 29, 1871, and consequently he could not, in any aspect of the case, recover from the defendant, as a co-trustee, as a penalty for the failure of the company to make and file the annual report required by statute, for services rendered subsequent to said date. This question was fairly raised by the answer, and although the printed case does not show that the attention of the trial judge was specifically directed to it, nothing appears which estops the defendant from insisting upon it. a still more serious question arises from the fact, that, although one witness called for the plaintiff testified to plaintiff's appointment as superintendent at a compen sation to be paid at the rate of fifty dollars per month from March 20, 1871, to April 1, 1871, and at the rate of one hundred dollars per month thereafter, there was

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