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section 3258a of the Revised Statutes so as to read as follows:

"Sec. 3258a. An action upon the liability of stockholders under the last preceding section can only be brought within eighteen months after the debt or obligation shall become enforceable against stockholders."

It seems to me that it was the intention of the Legislature to preserve by statutory enactment the double liability of the stockholders under the old Constitution and the old statute, in all cases where such liability had existed prior to the constitutional amendment, and that this intention was expressed in sections 3258 and 3258a of the Revised

Statutes adopted in 1904. The Legislature did, indeed, persist in its attempt to protect the holders of stock who had in good faith assigned their holdings before the debts of the corporation became enforceable, but that in no way affects the plaintiff in this case. The plaintiff has no cause of action whatever under the statutes of the state of Ohio other than that given by section 3258 of the Revised Statutes. It may be, as the plaintiff claims, that the liability of the stockholders would have survived the constitutional amendment of 1903. But nevertheless it is the liability imposed by section 3258, and consequently it must be enforced within the time prescribed by section 3258a.

The decision in Blackburn v. Irvine, supra, further holds that a stockholder residing in Pennsylvania, who is made a party but not personally summoned in an action brought by a creditor of an insolvent corporation in the courts of Ohio, and under the laws of that state, to enforce the double liability of stockholders, cannot, when subsequently sued in the place of his residence, interpose the defense that the action by the creditor in the Ohio court was not brought within the time limited by law. That defense, the court said, should have been raised in the Ohio court.

It is not argued here that the action brought in the court of Ohio by the creditors against these defendants and the the other stockholders was not timely brought. The argument is that the statute of limitations has run against the Ohio judgment itself. Nothing that was decided by the court in Blackburn v. Irvine in any way aids the plaintiff to maintain this suit.

I recommend that the order and judgment appealed from be affirmed, with costs in all courts, and judgment absolute be rendered against the plaintiff on his stipulation.

WERNER, HISCOCK, COLLIN, and MILLER, JJ., concur. CULLEN, C. J., and GRAY, J., concur in result.

Order and judgment affirmed.

(209 N. Y. 127)


(Court of Appeals of New York. June 17,




The plaintiff also cites the case of Blackburn v. Irvine, Receiver, 205 Fed. 217, recently decided in the United States Circuit Court of Appeals for the Third Circuit. That case relates to these same Ohio statutes. It was a suit brought in the United States District Court for the western district of Pennsylvania against a resident of Pennsylvania on a judgment recovered in the courts of Ohio in an omnibus action against all the stockholders, wherein the defendant was not personally served with notice of the action. The corporation in that case became insolvent in 1897, and the omnibus ac- An order of the Appellate Division, contion was brought within six years, but more firming a report of a referee appointed' on a petition by a claimant of a condemnation award, than 18 months thereafter. The defendant which has been paid under a prior order to a pleaded as a defense in the action brought person not entitled thereto, and setting aside by the receiver that the omnibus action in such former order, and commanding the recipthe courts of Ohio had not been broughtient of such award to pay same to petitioner, is a final order in a special proceeding, from within the time limited by section 3258a of which an appeal will lie. the Revised Statutes enacted in April, 1902. The court held that section 3258a was not retroactive and did not apply to a cause of action which accrued in 1897, and that to give the section a retroactive effect would render it unconstitutional.

In the case at bar no attempt is made to give section 3258a a retroactive effect. On the contrary, it is held that it applies to a cause of action which accrued in 1907, some five years after the section was added to the Revised Statutes. The contingent and secondary liability of these stockholders may have existed before 1902, but the right to bring this action, the action now before the court, came into existence in 1907.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 486, 487; Dec. Dig. § 83.*]



Where the owners of land condemned for streets are unknown, and the award is deposited with the city chamberlain, and afterwards is paid out on the application of one not holding under Greater New York Charter (Laws 1901, the record title, the remedy of the true owner, c. 466) § 1441, is an action for money had and received, against the person to whom the money is paid, and no action can be had against the municipality.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 706-716, 741; Dec. Dig. § 270.*]



rears to redeem the premises from a tax sale and for unpaid taxes and assessments. The While a court may vacate its orders in proper case, the Appellate Division, having giv-aggregate amount of the four warrants was en judgment in favor of appellant for an award $12,807.88. The proceeding was now apmade upon condemnation of land, the owners of parently at an end, so far as these awards which were unknown, cannot set its order or were concerned, but not so in fact. About judgment aside merely upon a showing by ana year later a new claimant appeared, in the other of a superior title; it appearing that appellant proved her title at the time of the person of Frances B. Watson. She presented judgment. to the Appellate Division a petition, supported by several affidavits, alleging that she was the owner of the awards, to which she had acquired title by assignment in 1910, and

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 426, 428-432; Dec. Dig. § 158.*]

Appeal from Supreme Court, Appellate asking that Delia A. Finnegan be directed to Division, Second Department.

In the matter of acquiring title by the City of New York to certain lands and premises. From an order of the Appellate Division (141 N. Y. Supp. 1110), affirming the report of a referee, and vacating a previous order directing the payment of the award to Delia A. Finnegan, and commanding her to repay it to the city chamberlain, she appeals, and William L. Bailey and others appeal from that part of such order adjudging that they had no claim to any part of such award. Reversed.

Charles C. Clark, of Brooklyn, for appellant Delia A. Finnegan. Merle I. St. John, of New York City, for appellants William L. Bailey and others. Robert S. Kristeller, of New York City, for respondent Frances L. Watson. William J. Pape, of Brooklyn, for

other respondents.

WILLARD BARTLETT, J. This was a proceeding to acquire lands in the borough of Brooklyn for use as a storage yard for the department of highways. Commissioners of estimate were duly appointed whose report, which was confirmed by the Supreme Court on November 29, 1904, awarded to unknown owners $750 for damage parcel No. 5, as designated on the commissioners' map, and $8,925 for damage parcel No. 6. These amounts were thereupon duly paid into court, where they remained until 1909, when Delia A. Finnegan, the appellant herein, presented a petition to the Appellate Division, alleging that she was the owner of the awards, and praying for an order directing the chamberlain of the city of New York to pay them over to her. Annexed to the petition was an abstract of her title. Upon this petition and the papers which accompanied it, and upon due notice to the corporation counsel, who appeared but did not oppose the application, the Appellate Division made an order on the 21st day of January, 1910, directing the chamberlain to pay the amount of said awards to the said Delia A. Finnegan, together with accrued interest thereon from the date of deposit. This order was duly complied with by the chamberlain, who made the payment by means of four warrants, two of which—one for $1,834.79 and another for $1,486.82-were assigned by Delia A. Finnegan to the collector of assessments and ar


repay to the chamberlain the moneys which she had received from him, and that a referee be appointed to determine the rights of the various parties to the fund and report the same to the court. Thereupon the Appellate Division, against the objection and opposition of Delia A. Finnegan and the city, represented by the corporation counsel, appointed a referee to take proof of the facts and circumstances set forth in the said petition of Frances B. Watson, and report the testimony, together with his opinion thereon. The order of reference was duly executed, and the referee reported as follows: That Delia A. Finnegan was not entitled to the award to unknown owners, and that she should be required to repay the same into court, less the amount she had applied to the payment of back taxes; (2) that Frances B. Watson had a record title to the premises embraced in parcel No. 5 and the southerly half of parcel No. 6, and was the lawful owner of the awards therefor; and (3) that certain persons, named as the heirs of Sarah Duryea, were the rightful owners of the award for the northerly half of parcel No. 6. Upon the coming in of this report the Appellate Division made the order from which the present appeal is taken. That order confirmed and ratified the referee's report in all respects, vacated and canceled the order of the Appellate Division of January 21, 1910, under which the awards had been paid to Delia A. Finnegan, and commanded her to repay to the chamberlain of the city of New York the sum of $10,903.98, to the credit of damage parcels Nos. 5 and 6 in this proceeding, within 15 days from the service of the order upon her.

[1] The respondent objects that the order is not appealable; but I think that it is a final order in a special proceeding which the appellant is entitled to have reviewed as a matter of right. It is a finality as far as her rights are concerned, for it is a conclusive adjudication against her claim to the awards. It is necessary, therefore, to dispose of the appeal upon the merits.

[2] The provisions of the Greater New York Charter (Laws 1901, c. 466) § 1441, relative to awards to unknown owners in proceedings to condemn lands for such a public use as that contemplated in the present case, point out the remedy which is available to a party in

the position of the respondent, upon ascertaining that an award has been paid to another. This is an action for money had and received against the recipient of the award. The section cited provides that "in all and each and every case or cases, where any such sum or sums or compensation, so to be reported by said commissioners in favor of any person or persons, party or parties whatsoever, whether named or not named in said report, shall be paid to any person or persons, party or parties whatsoever, when the same shall of right belong to and ought to have been paid to some other person or persons, party or parties, it shall be lawful for the person or persons, party or parties to whom the said sum or sums ought to have been paid, to sue for and recover the same, with lawful interest and costs of suit, as so much money had and received to his, her or their use, by the person or persons, party or parties, respectively, to whom the same shall have been so paid." I think that the proper course for the respondent was to bring the action thus expressly permitted by statute, as was held in a similar case by the Appellate Division in the First Department. Matter of Corporation Counsel N. Y. City, 42 App. Div. 198, 58 N. Y. Supp. 1029.

[3] In my opinion, the order under review, whereby the Appellate Division vacated its previous order of January 21, 1910, for the payment of the awards to Delia A. Finnegan, was not warranted by any facts brought to the attention of the court in behalf of the petitioner. That a court of record possesses the power to vacate its own judgments, or orders partaking of the nature of judgments, upon proper occasion, is a proposition not now open to question. Clark v. Scovill, 198 N. Y. 279, 286, 91 N. E. 800, and cases there cited. This power, however, cannot be exercised in the absence of facts justifying action to that end. The defect here is the failure of the petitioner to present any such state of facts to the Appellate Division as properly to invoke its jurisdiction to vacate its former order. That order had been duly and regularly made, upon the notice prescribed by law. There was no suggestion in the papers upon which the application to vacate it was based that the order had been induced by fraud, collusion, concealment, or misleading practice of any sort. The intimation that the order was inadvertently granted upon an untrue statement which misled the court appears for the first time in the supplemental brief, which the respondent has been permitted to submit to this court after the oral argument. This assertion is not supported by the record, which, on the contrary, shows that the corporation counsel made a careful investigation of the title of Delia A. Finnegan, and expressed his satisfaction therewith to the Appellate Division. His assent to the granting of the order showed that that officer deemed the appellant's claim of title suf

claim were fully laid before the court, it is to be presumed that the Appellate Division agreed with him. Certainly an order made under such circumstances cannot be deemed to have made inadvertently. During the five years that had elapsed since the award had been paid into court to the credit of unknown owners the respondent and her grantors enjoyed the same opportunity as the appellant to ask that the award be paid over to them as the true owners, yet they remained supine and silent. The Appellate Division, unaware of the existence of a claim on their part which they had never taken the trouble to assert, ordered the money paid to one who was prima facie entitled to receive it. The order was made in strict compliance with the procedure prescribed by law. The mere fact that another claimant put in an appearance a year later, asserting a superior title, constituted no legal reason whatsoever for vacating it. If the second claim were valid, the recipient of the award was in the position of one having received money for the use of another, and was liable accordingly; but the regularity and validity of the order under which it was received remained unaffected. The most that can be said against the order is that the court which made it erred in pronouncing the appellant's statement of her title sufficient; but I have never yet understood that such an error of law in and of itself constituted a ground for vacating a judgment or order of a similar character which had been executed.

If the respondent was entitled to have the order vacated on this ground one year after it was made, why not 5 years afterwards, or 10 or 20? An application, such as has been successful in this case on the part of a new claimant to the award, would be a most convenient method of avoiding the statute of limitations, which would run against him if he prosecuted the recipient as for money had and received. Instead of bringing his timely action to recover the award from the payee, he can wait till inclination prompts him to do so, and then obtain a vacatur from the Appellate Division on the ground that it paid the money to a person who was then the only claimant, upon a mistaken view of the sufficiency of the title, which he frankly laid before the court as the basis of his claim, and which the chief law officer of the city agreed was sufficient.

The order under review should be reversed, and application denied, with costs, not because the court below does not possess the power to vacate its own orders or judgments upon proper occasion, but because no facts were presented to the Appellate Division sufficient to invoke the exercise of its jurisdiction in that respect.


(215 Mass. 425)

HANLEY et al. v. ETNA INS. CO. (Supreme Judicial Court of Massachusetts.

Suffolk. Sept. 12, 1913.)


In an action upon an award of referees appointed under the provisions of a fire insurance policy, defended on the ground that evidence which the company had a right to introduce before the referees was improperly excluded by them, the burden is upon it to show that such evidence was material, and that its exclusion prejudiced the company.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. 8 646.*]


The provisions of the Massachusetts standard form of fire policy as adopted by St. 1907, c. 576, § 60, which requires submission of controversies as to the amount of loss to three referees, when construed in the light of the purposes and history of the act, as shown by St. 1873, c. 331, St. 1881, c. 166, and St. 1887, c. 214, § 60, and the decisions of the courts thereunder, does not require the referees to receive evidence upon the amount of loss, but they may determine it in any way which, in the exercise of an honest discretion, they think wise.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. 88 1422, 1423, 1427, 1429; Dec. Dig. 572.*]


In construing such a provision, it is immaterial whether the persons who fix the amount of loss are called referees or appraisers, and whether their decision is called an award or an appraisal.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1420, 1421; Dec. Dig. § 567.* 4. INSURANCE (§ 572*)-PROCEEDINGS ON APPRAISAL-DISCRETION OF REFEREES.

Where a building is wholly destroyed, it would ordinarily be a wise exercise of discretion, for the referees appointed to ascertain the amount of the loss, to determine it in the usual way in which civil cases are tried by referees. [Ed. Note.-For other cases, see Insurance, Cent. Dig. $§§ 1422, 1423, 1427, 1429; Dec. Dig. § 572.*]


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Jas. R. Murphy and David H. Fulton, both of Boston, for plaintiffs. F. W. Brown and W. L. Came, both of Boston, for defendant.

LORING, J. This is an action on a policy of fire insurance in the form prescribed by St. 1907, c. 576, § 60, brought to recover the amount found by referees appointed in accordance with the terms of the policy to have been the amount of injury done to the plaintiffs' building by a fire against which the plaintiff was insured. The building in question was injured but not destroyed. At the trial the defendant insurance company proved by the testimony of the third referee that the referees had refused to admit evidence offered by it bearing on the amount of the loss. The third referee testified that the award was made on what he saw aided by thirty years' experience in the lumber business and by his experience in having buildings erected for him, and that he did not think that the evidence offered was worthy of consideration. It was agreed by counsel that this evidence was to be taken to be true. It is a fair inference from the report that it covered the action of the other referee who signed the award. On recrossexamination by the defendant's attorney the third referee, in answer to the question, "And it was your duty, in making that examination, to rely solely on what you could see yourself," testified that he did. We do not construe this to modify his preceding testimony that the evidence offered was excluded because the referees in their discretion decided not to admit it. It is expressly stated in the report that the defendant did not ques-. tion the good faith of the two referees who signed the award.

Upon this testimony the presiding judge ruled that as matter of law the award was invalid because the referees refused to hear the evidence offered by the defendant and directed a verdict for the defendant. case is here on report.


[1, 2] It did not appear at the trial in the superior court what the evidence was which the defendant offered to introduce before the referees. If the defendant had a right to put in any pertinent evidence before the referees, the burden was on the defendant to show that the evidence excluded in the case at bar was material and that it was harmed by the exclusion. That burden was not sustained here by the defendant, and this case [Ed. Note. For other cases, see Insurance, might be disposed of on that ground. But the Cent. Dig §§ 1430-1432, 1434; Dec. Dig. $conduct of hearings by referees appointed 574.*]

In an action upon an award of referees appointed to appraise a fire insurance loss, a report by the superior court which states that if the award was invalid, judgment was to be rendered for the insurance company is not to be approved, where the time has expired within which, under the terms of the policy, the insured could institute another action.

under the Massachusetts standard form of

Report from Superior Court, Suffolk Coun- fire insurance policy is a practical matter of ty; Jabez Fox, Judge.

Action by Catherine L. Hanley and others against the Etna Insurance Company. The trial court directed a verdict for defendant, and reported the case to the Supreme Court. Judgment directed for plaintiffs.

almost daily occurrence which should not be left in uncertainty. For that reason we prefer to decide the case on the broader ground that it is within the discretion of the referees, in cases like the case at bar, to admit evidence or to find the amount of the loss

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

by inspection, or by inspection and informa- | and disinterested umpire; the appraisers to- ' tion obtained by them in such way as they in gether shall then estimate and appraise the their discretion think fit. loss, stating separately sound value and

It was decided in Christianson v. Norwich damage, and failing to agree shall submit Union Fire Ins. Soc'y, 84 Minn. 526, 88 N. W. their differences to the umpire; and the 16, 87 Am. St. Rep. 379, that referees appoint-award in writing of any two shall determine ed under a standard form of policy like our the amount of such loss." For the New York own (see Minn. Sts. 1895, c. 175, § 53) should standard form see 1 Clements, Fire Ins. (1905 sit as a quasi court and decide the case on ev- Ed.) 474, and Fleming v. Phoenix Assur. Co., idence offered by the respective parties. There 75 Hun, 530, 27 N. Y. Supp. 488. It is not had been a previous decision to the same of consequence whether the persons who are effect (Mosness v. German-American Fire to fix the amount of the loss as between the Ins. Co., 50 Minn. 341, 52 N. W. 932), when insured and the insurer are called appraisers there was no standard form of policy in that or referees, nor whether their decision is state (see Minn. Sts. 1889, c. 217), and the called an award or an appraisal. We do not policy there in question contained the provi- overlook the fact that in the New York Ision which is found in the New York stand- standard form it is called an award. If the ard form. For subsequent cases confirming rights of the parties are fixed by persons the decision in Christianson v. Norwich called appraisers and their conclusion is callUnion Fire Ins. Soc'y, ubi supra, see Redner ed an appraisal, they are in effect referees v. New York Fire Ins. Co., 92 Minn. 306, and their conclusion is in effect an award. 99 N. W. 886; Schoenich v. American Ins. The history and purpose of the statutes Co., 109 Minn. 388, 124 N. W. 5. There is a which resulted in St. 1907, c. 576, § 60, essimilar decision in South Dakota (Mason v. tablishing the Massachusetts standard form Fire Association of Philadelphia, 23 S. D. of fire insurance policy containing the clause 431, 122 N. W. 423), under a standard form of here in question shows that the referees appolicy like that prescribed in New York. See pointed under it were intended to be referees Laws of South Dakota 1893, c. 105. And in of the character previously described in Canfield v. Watertown Fire Ins. Co., 55 Wis. Palmer v. Clark, 106 Mass. 373, theretofore 419, 13 N. W. 252, a similar decision was well known in the jurisprudence of this commade in case of a policy which was not pre-monwealth. See Flint v. Gibson, 106 Mass. scribed by statute but which contained the 391; Robbins v. Clark, 129 Mass. 145; Haley provision found in the New York standard v. Bellamy, 137 Mass. 357. In Palmer v. form of fire insurance policy stated later on. Clark, Colt, J., 106 Mass. at page 389, said: [3] The opposite conclusion, however has "A reference to a third person to fix by his been reached in every other state in which judgment the price, quantity or quality of the question has arisen. See Bangor Savings material, to make an appraisement of propBank v. Niagara Fire Ins. Co., 85 Me. 68, 26 erty and the like, especially when such refAtl. 991, 20 L. R. A. 650, 35 Am. St. Rep. 341; erence is one of the stipulations of a conHall v. Norwalk Fire Ins. Co., 57 Conn. 105, tract founded on other and good considera17 Atl. 356; Townsend v. Greenwich Ins. tions, differs in many respects from an ordiCo., 86 App. Div. 323, 83 N. Y. Supp. 909, nary submission to arbitration. It is not affirmed in 178 N. Y. 634, 71 N. E. 1140; revocable. The decision may be made withRoyal Ins. Co. v. Ries, 80 Ohio St. 272, 88 out notice to or hearing of the parties, unless N. E. 638; Vincent v. Germania Ins. Co., 120 such notice and hearing be required by exIowa, 272, 94 N. W. 458; Liverpool Ins. Co. press provision or reasonable implication; v. Goehring, 99 Pa. 13; Stout v. Phoenix and it may be made upon such principles as Assur. Co., 65 N. J. Eq. 566, 56 Atl. 691; the person agreed on may see fit honestly to American Central Ins. Co. v. Landau, 62 N. adopt, or upon such evidence as he may J. Eq. 73, 93, 49 Atl. 738; Carlston v. St. choose to receive." Paul Fire Ins. Co., 37 Mont. 118, 94 Pac. 756, 127 Am. St. Rep. 715; American Steel Co. v. German-American Fire Ins. Co., 187 Fed. 730, 109 C. C. A. 478. See, also, Continental Ins. Co. v. Vallandingham, 116 Ky. 287, 300, 76 S. W. 22, 105 Am. St. Rep. 218. These cases have arisen under the New York standard form of policy or under a policy not prescribed by statute which contained a clause like that in the New York standard form. The New York standard form provides that: "In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the

Before any statute on the subject had been enacted, a contest under a policy of fire insurance almost always was begun by putting the insured to a proof of the amount of his loss. That generally meant a reference to an auditor whose conclusion, often reached after many hearings extending over a long period of time, was subject to revision at the trial of the cause in court. Such a method of determining the amount of loss under a fire insurance policy was an unsatisfactory one, and it was manifestly the purpose of the statutes which ended in St. 1887, c. 214, § 60 (now St. 1907, c. 576, § 60), to do away with it and provide a better one. The form of policy first prescribed by statute in Massa

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