33 Barb. 336 | N.Y. Sup. Ct. | 1861
By the Court,
The cause is properly before us for review upon the appeal from the judgment. The plaintiffs disregarded the order of the judge at the circuit giving the defendants leave to make a case and directing the motion for a new trial thereon to be heard in the first instance at the general term, and perfected their judgment. If this was irregular it was merely an irregularity, and all objection to it was waived by the defendants by their appeal, and the case is before us as if no order had been made at the circuit, other than the usual order for judgment.
The principal point made and argued in behalf of the appellants is not in the case. The want of a formal resolution by the board of directors of the insurance company, authorizing the transfer of the note in suit, is the point mainly relied on for the reversal of the judgment, and yet that ground was
But if- the point had been distinctly taken, it would not have availed the defendants, for several reasons: 1. The statute prohibiting transfers of the effects of moneyed corporations exceeding in value $1000, except as authorized by a previous resolution of the board of directors, (1 R. S. 4th ed. 1115, § 60,) was designed to protect the corporation against the acts of its agents and officers, and is for the benefit of the corporation and its stockholders and creditors. (Curtis v. Leavitt, supra. Eno v. Crooke, 6 Selden, 60.) So long as the corporation nor any one claiming under it, or as a creditor having a claim against it at the time of the transfer who might be injured by it do not repudiate the transaction and seek to reclaim or reach the note, the debtor cannot attack the title of the holder under this statute. The transfer is not void, but simply voidable at the suit of the corporation or other party in interest. 2. The statute saves the rights of a purchaser for a valuable consideration, and the plaintiffs were
It is now urged that the indorsement of “L. Gregory, President,” was not the indorsement of the Globe Mutual Insurance Company, so as to pass title to the note. This point was not taken at the trial. But treated as taken, it is not tenable. This case is distinguished from that relied on by the defendant’s counsel. (Marine Bank v. Clements, 3 Bos. 600.) The fact was proved in this case:; the absence of which is commented upon by the learned judge in that case, and for want of which the judgment in that case was given. It was proved here that the company had been accustomed to indorse its commercial paper in this manner, and it did not appear that indorsements in any other form had ever been made by it. It was then the indorsement of the company, and not of the president individually, and so the jury must have found had the counsel for the defendants desired that question to be submitted to them, and is in effect found by the general verdict rendered by the jury, under the directions of the court. In Marine Bank v. Clements stress is laid upon the omission of the referee to find that the note was “ indorsed by the company.”
The only other question arises upon the offer of the defendants to prove the defense as stated under the second head of their answer, and the exclusion of the evidence by the court. The fair construction of this pffer would limit it to evidence of the facts alleged in the paragraph or clause of the answer preceded by the word “ Second,” and such I doubt not was the understanding of the judge at the trial. The following paragraphs of the answer purport to be statements of other and distinct defenses having no connection with the fact alleged in the “ second ” paragraph, or with each other. Had the defendants intended any thing else, their counsel should have stated the specific facts designed to be proved, that the court
Clerke, Sutherland and Allen, Justices.]
The judgment must be affirmed.