did so. He not only passed plaintiff's lot at some distance from the bridge but passed over much more of it than necessary. Nothing but absolute necessity justifies a traveler on a highway using the land of an adjoining owner without his consent and he can use what is absolutety required. It is not for the traveler, for his convenience or at his will, to ramble over another's premises. He must go on it near to the highway and so as to use such land no more than absolutely necessary. If he does not he becomes a transgressor and is liable to an action.

In this case if defendant was not bound to keep within the highway he should have crossed the river so as to strike plaintiff's land as near as possible to the road and so as to have only passed over a small corner of the lot.

I think the evidence establishes the fact that the defendant used more of plaintiff's premises than was necessary, crossed said lot where he had no right to, and that therefore he is liable in this action. The damages, however, seem to be nominal. As the question of title is raised, plaintiff is entitled to the costs of the action.

Wilmer H. Dunn, for app'lt; J. F. Shedden, for resp't.

Judgment affirmed, with costs, on opinion of court below.
LEARNED, P. J., LANDON and MAYHAM, JJ., concur.

JOHN MCDOWALL, Resp't, v. CORNELIUS SHEEHAN, App'lt. (Supreme Court, General Term, Third Department, Filed February 18, 1891.) 1. MANUFACTURING COMPANIES-TRUSTEE MAY RECOVER FOR SERVICES.

A trustee of a corporation created under the manufacturing act, chapter 40, Laws of 1848, may recover for services rendered to the corporation.

2. SAME.

Where a trustee has recovered against the corporation a judgment for such services, it is proper and necessary, in an action against a stockholder, under § 10 of said act, to prove the judgment.

APPEAL from judgment in favor of plaintiff.

This was an action by plaintiff as a creditor of a corporation created under the manufacturing act, chapter 40, Laws 1848, known as the " Saratoga Union," to recover a debt from defendant, a stockholder, to the amount of his stock. Plaintiff was a trustee of the corporation, as well as a writer for it. Under § 10, stockholders are severally liable to creditors, up to the amount of their stock, until the whole capital stock has been paid in and a certificate to that effect shall have been made and recorded. Under $24, no stockholders shall be personally liable for a debt which is not to be paid within one year from the time it was contracted, nor unless suit is brought against the company within one year after the debt shall become due. The plaintiff's claim was based on a contract for services, made March 18, 1887, and $500 loaned July 27, 1887, for which a note was given. Certificate of incorporation was filed May 27, 1887. On October 16, 1888, plaintiff, having been at work to that date under said contract, brought suit on

these claims against the corporation (his services amounting then to some $1,400), and recovered judgment April 25, 1889. Execution was issued and returned unsatisfied. The defendant claimed that the money put by him in the corporation was a loan. A certificate representing the money was issued to plaintiff, who alleged upon the trial that he was acting for the defendant Sheehan, who did not wish his name to appear. The plaintiff paid nothing, and subsequently endorsed the certificate in blank, and it was handed to Sheehan. The recovery in this action was for $1,000, the amount of defendant's stock.

John Foley (J. W. Crane, of counsel), for app'lt; Charles Lester, for resp't.

LEARNED, P. J.--There is sufficient evidence to show that defendant was a stockholder. He paid his $1,000 through Judge Putnam to the company, and he received through Judge Putnam a certificate issued in the name of McDowall and assigned by McDowall in blank. The acceptance and retention of this certificate showed that instead of making a present of the $1,000 to the company, he took stock therein.

It is true that he did not intend that his $1,000 should be so paid as to cause any personal liability. But Judge Putnam had been told that all the stock but $1,500 had been subscribed for (or paid) and had repeated this information to defendant, and thereupon had been authorized to pay the defendant's $1,000 together with his own $500.

It turned out that the statement thus made to Judge Putnam was not true. But the plaintiff was not responsible for that error, and knew nothing of it. Nor can it be said that the plaintiff obtained anything by that untruthful statement and thus became responsible for it. The money paid by Judge Putnam went to the company and did not belong to the plaintiff.

There can be no doubt that for work done by the plaintiff for the company he had a right of action against it, although he was

a trustee.

It was proper and necessary to prove the judgment against the company. The plaintiff then gave other evidence tending to show that the company owed him.

Even if the liability on the note could not be a ground of recovery in this action because the action against the company was not commenced within the year, yet that objection does not lie against the cause of action for plaintiff's services. For the plaintiff's services continued till October, 1888, and in that month the action against the company was commenced.

The defendant urges that some of these services were rendered before the company was formed. This is immaterial, since a sufficient amount of service was rendered after the company was formed, to make an indebtedness to the plaintiff of over $1,000. And the recovery is only for $1,000.

The plaintiff was not a stockholder, although these shares had been issued to him. That had been done because defendant did

N. Y. STATE REP., VOL. XXXVI.

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not desire to appear as a stockholder. But plaintiff never paid for the share and assigned the certificate to defendant at once, and defendant must have accepted it; for it was produced by him at the trial.

Judgment affirmed, with costs.

MAYHAM, J., concurs; LANDON, J., not acting.

CALVIN TYLER, 2nd, App'lt, v. JAMES B. O'REILLY, Resp't.

(Supreme Court, General Term, Third Department, Filed February 18, 1891.) EVIDENCE-CUSTOM IN SELLING GOODS.

Plaintiff authorized defendant to sell lumber for him but did not state whether for cash or on credit. Defendant sold to P. on credit and P. failed. In an action by plaintiff against defendant the latter testified in his own behalf that he sold P. on credit, which was the usual way. Plaintiff then offered to show a universal custom to sell for cash. This was excluded. Held, error.

APPEAL from a judgment in favor of defendant.

Action to recover for a quantity of lumber which defendant had sold for plaintiff.

James I. Curtis (T. F. Bush, of counsel), for app'lt; Alpheus Potts, for resp't.

LEARNED, P. J.-The facts may be briefly stated as follows: The plaintiff authorized the defendant to sell some lumber for him. Nothing was said about the terms of sale; whether for cash or credit. In a subsequent conversation between defendant and plaintiff's son, defendant said he could have sold some and taken paper, but plaintiff would not like that; and plaintiff's son said no. Afterwards defendant sold some to Powell, that is, he authorized Powell to take it. Powell proved to be irresponsible.

The defendant testified in his own behalf that he sold this lumber in the usual way of selling that kind of lumber; on credit.

Afterwards the plaintiff offered to show that it was the universal custom to sell lumber for cash, and that it was the exception to sell for credit. This was excluded and plaintiff excepted. The court non-suited the plaintiff.

As defendant has been permitted, in order to justify his action, to testify that it was usual to sell such lumber on credit, it is plain that the plaintiff should have been permitted to deny this.

Further, the conversation between defendant and plaintiff's son tended to show that before the actual sale defendant understood that he was to sell only for cash.

This made a question for the jury.

The duty of the agent is stated in 2 Kent's Com., 622, and is so familiar that we need not repeat it. We think that the case should have gone to the jury and that the evidence above mentioned should have been admitted.

Judgment reversed, new trial granted, costs to abide event.
LANDON and MAYHAM, JJ., concur.

THE PEOPLE, Resp'ts, v. CASSIUS C. CORNER, App'lt. (Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) SET OFF-NOT ALLOWABLE AGAINST THE STATE.

In an action brought by the state upon contract, the defendant cannot set off damages by reason of the breach of other contracts by the state. Το permit him to do so would be to allow him to do indirectly that which he could not do directly.

APPEAL from a judgment entered in Chemung county in favor of the plaintiff for $10,661.96, upon the report of a referee. The referee found, viz.: "That the plaintiffs between July 9, 1888, and January 21, 1859, inclusive, sold and delivered to the defendant at the New York State Reformatory at Elmira, brushes and brush materials at and for the price, and of the value of $11,627.97. All of said materials were so sold and delivered after August 2, 1888, and all of said brushes after that date, except $1,263.39, in value of the same." He also found a payment had been made of $2,085.13. He also found the defendant indebted in $7.88 for moneys expended to the use of the defendant. As conclusions of law the referee found: First: "That the counterclaim set up in the defendant's answer is not available to the defendant or allowable against the state in this action or court."

In the defendant's answer it was stated that sundry orders had been delivered to the officers of the New York State Reformatory at Elmira, and that the same had been accepted by the superintendent; that the orders had not been filled and that "the plaintiff herein had, for a good and valuable consideration, agreed to make, manufacture and produce for the defendant, and deliver to him, a large quantity of brushes, many thousand gross in number, and of various kinds and descriptions, which particular kinds and descriptions this defendant is now unable to designate. That of said orders, contracts and agreements, some, on the said 2nd day of August, 1888, had been partially carried out and kept by the said plaintiffs; and a partial number of the brushes so to be manufactured by the plaintiffs and delivered to the defendant only have been so manufactured and delivered, while other of said orders or agreements the said plaintiff had not even partially complied with or carried out on the said 2nd day of August, 1888, and they had not manufactured or delivered to the defendant any of the brushes or goods which, under such orders or agreements, they had contracted to manufacture and deliver. * * And defendant further alleges that by reason aforesaid set forth in this second answer and defense, all of which matters are herein set forth upon information and belief, he, the said defendant, has been damaged in at least the sum of $10,000; and such sum this defendant asks this court to set off against any sum the plaintiffs may, upon the trial of this action, show themselves entitled to by reason of the matters set forth in the said complaint, and defendant asks that such damages as said defendant may show himself entitled to by reason of the matters set forth in

*

this second answer and defense upon the trial of this action may be used to cancel or offset to the extent thereof the damages which the plaintiffs may, upon the trial hereof, show themselves entitled to by reason of the matters set forth in their said complaint, and that plaintiffs' said complaint be dismissed; with costs, and for such other or further relief as to the court may seem just and proper."

Defendant gave some evidence tending to establish the allegations of his answer.

The case states: "Plaintiff's counsel seasonably objected to all testimony offered by defendant tending to prove the counterclaim or cause of action alleged in the answer, on the ground that such claim was not available to the defendant or allowable against the state in this action, and at the close of all the evidence duly requested the referee to so find and hold." The appellant requested the referee to find "The defendant is entitled to recoup or counterclaim against the claim of the state and the amount due from defendant to the state in this action, the said sum of damages, or so much thereof as may be necessary." The referee refused so to find; an exception was taken to such refusal. Frederick Collin, for app'lt; Charles F. Tabor, attorney general, and Erastus F. Babcock, for resp'ts.

HARDIN, P. J.-Appellant's answer set up new matter, and under the answer he sought to establish new and independent orders given to the plaintiff; accepted by the plaintiff; a failure to perform in accordance with the orders and acceptances, and by reason of the breach to be allowed such prospective profits as would have come to him in the event of a fulfillment of the orders. Such new matter constituted a counterclaim. Wilder v. Boynton, 63 Barb., 547. Assuming that such new matter constitutes a cause of action in favor of the defendant, and that equitably and justly he was entitled to recover, by reason of such new matter, damages from the state, the question here presented is whether or no such recovery or allowance can be had in this action. If the plaintiff had not commenced this action, it is very clear and well settled by an unbroken line of authorities that the defendant could not have brought and maintained an action against the state. seeking redress for the injuries sustained by him, if any, by reason of a breach of the terms of the orders referred to in his answer, his remedy would necessarily have been sought in a court of claims established by the state for ascertainment of damages in such and other cases. The People v. Dennison, 59 How. Pr., 157; S. C., affirmed 84 N. Y., 272.

In

Judge Rapallo, in speaking of the counterclaim in the case just cited, says: "Another mode of redress is provided by statute in such cases, and if the defendants have any just claim against the state they must apply for relief to the board of audit, the tribunal instituted by the state for passing upon such claims. As their claim was not triable or recoverable in this action, the judgment rendered herein does not conclude the defendants in respect In Reeside v. Walker, 11 How., U. S., 290, it was said: