Ogden v. Raymond. building. The jury have found, as I think upon sufficient evidence, that the service was performed upon the retainer of the appellant. The jury have also negatived the idea that it was a condition of the employment that nothing was to be paid for the labor of preparing the plans unless the appellant adopted them. The plaintiff was entitled to be compensated for his labor, and the jury have fixed the compensation at a sum less than the evidence, if credited, justified. The judgment should be affirmed. All the judges concurred. Judgment affirmed, with costs, and ten per cent. damages. OGDEN v. RAYMOND. December, 1863. Affirming 5 Bosw. 16. In an action on a note, the defense that it was transferred by a moneyed corporation without a vote of the directors, contrary to 1 R. S. 591, § 8, is not available where it is alleged in the complaint, and not denied by the answer, that the note was duly indorsed, transferred, and delivered by the corporation.* It seems, that such defense is not available in an action on a single note for less than one thousand dollars, although it was transferred as a part of securities together exceeding that sum. Samuel G. Ogden, Jr., sued William M. Raymond and another, in the New York superior court, on a promissory note made by them, dated October 4, 1855, for seven hundred and fifty dollars, payable to the International Insurance Company or order, and indorsed by the president thereof. On the trial it appeared that the note was taken by Samuel G. Ogden, Sr., from the company, in good faith, and for a valuable consideration, at the same time with a number of other notes, amounting together to about fifteen thousand dollars. Evidence to show that the president of the company had indorsed the note * Compare Houghton v. McAuliff, vol. 2, p. 409, of this series Ogden v. Raymond. without being authorized by a resolution of the directors, was excluded, as the fact that the note had been duly indorsed, transferred and delivered, was alleged in the complaint and not denied in the answer; and judgment was given for the plaintiff. The superior court, at general term, sustained the judgment, on the ground that Ogden, Sr., was a holder for value. Reported in 5 Bosw. 16. Peter Y. Cutler, for defendant, appellant. G. W. Stevens, for plaintiff, respondent. BY THE COURT.-WRIGHT, J.-The case of Ogden v. Andre, decided by this court* at the last March term, in its principal features and in the questions raised by the appellants, was like the present one. Both actions were upon subscription, or advance premium notes held by the International Insurance Company, and transferred by such company to Samuel G. Ogden, Sr., as security for a loan of nineteen thousand dollars, made by the latter to the company to meet its liabilities. There was no evidence in either case tending to show that the senior Ogden was not a bona fide holder of the notes, nor that they had not been negotiated by the insurance company in the course of business; and in the present case these facts were not put in issue by the pleading. In both cases the transfer of the notes was made by the president of the company without any previous resolution of the board of trustees; but in this case the question of the authority of the officer to act without such resolution is not involved. The complaint averred that the note was duly indorsed, transferred and delivered to the plaintiff by the International Insurance Company, and that fact was not denied by the answer of the defendants. In the case of Ogden v. Andre, it was held that the insurance company had authority to transfer the notes to Ogden; and that such transfer was not invalid as being in contraven * In that case, this court unanimously affirmed the judgment in 4 Bosw. 583, Ogdensburgh, &c. R. R. Co. v. Wooley. tion of the provisions of section 8 of article 1, title 2, chapter 18, part I. of the Revised Statutes. 1 R. S. 591, § 8. The insurance company was authorized by its act of incorporation to pledge or negotiate the notes for money borrowed (L. 1844, c 115, § 11; L. 1855, c. 295); and the provision of the Revised Statutes has no application to the case of a transfer to a bona fide holder for a valuable consideration. The provision of the Revised Statutes is that "No conveyance, assignment or transfer not authorized by a previous resolution of its board of directors shall be made by any such corporation of any of its real estate, or of any of its effects, exceeding the value of one thousand dollars"; but this section shall "not be construed to render void any conveyance, assignment or transfer in the hands of a purchaser for a valuable consideration and without notice." 1 R. S. 591, § 8. If the section has any application to the transfer of a promissory or subscription note bought by an insurance company in the course of business, to earn money to meet its liabilities, this case does not fall within it. Ogden, the transferee, was a bona fide holder. Besides, in this case the property transferred did not exceed the value of one thousand dollars. It was the defendants' promissory note for seven hundred and fifty dollars, which had not matured at the time of the negotiation. The judgment of the superior court should be affirmed. All the judges concurred, except H. R. SELDEN and EMOTT, JJ. Judgment affirmed, with costs. OGDENSBURGH &c. RAILROAD COMPANY v. WOOLEY. September, 1864. Where a subscriber to the stock of a railroad company gave notes for ten per cent. of his subscription and for several installments which been called for, and the company disposed of the notes before maturity to a purchaser for value and without notice, who sued on the notes Ogdensburgh, &c R. R. Co. v. Wooley. and, after litigation, collected them out of the subscriber's property,— Held, that the subscription was valid under the general railroad act (L. 1850, c. 140, § 4), which declares that no subscription to the stock shall be taken without a payment of ten per cent. of the amount, in money. Under this statute, if both the subscription and the actual cash payment of ten per cent. have been made, the contract is binding, although the acts were not simultaneous.* The validity of the subscription does not depend on whether the payment of the ten per cent. was made willingly or by legal compulsion. The Ogdensburgh, Clayton & Rome Railroad Company sued William W. Wooley, in the supreme court, to recover sundry installments alleged to be due upon defendant's subscription to the company's capital stock. On the trial, it appeared that at the time the defendant made his subscription to the stock of the plaintiff he had nothing in money, but that he had given his promissory note for one hundred dollars (the amount of the subscription being one thousand dollars), as and for the ten per cent. required. That subsequently by an agreement with the plaintiff the defendant's subscription was reduced to seven hundred dollars, and the defendant's name was entered in the plaintiffs' books as a subscriber for that amount. That the defendant afterwards gave two negotiable notes for a sum including the original ten per cent., and the several calls which had been made upon him as a stockholder, and the note for one hundred dollars was surrendered to him. Before their maturity the said two notes were negotiated, and subsequently suit was brought on them, in which the defendant appeared, and put in an answer, but becoming satisfied that the notes had been transferred without notice and for value, he allowed a judgment to be taken against him by default. Further calls had been made upon the defendant, and he had neglected to pay, and the plaintiff then brought this action. The defense was that the defendant had never paid the ten * See Beach v. Smith, 30 N. Y. 116; and compare Crocker v. Crane, 21 Wend. 211; see, also, People v. Albany & Susquehanna R. R. Co., 1 Lans. 308, 345; 55 Barb. 344; S. C., 7 Abb. Pr. N. S. 265, 306; reversed in part in 5 Lans. 25. Ogdensburgh, &c. R. R. Co. v. Wooley. per cent. in money on making the subscription, as required by the general railroad act, and that therefore the subscription was not valid. The provision of the act on this point is: "At the time of subscribing, every subscriber shall pay to the directors ten per cent. on the amount subscribed by him in money; and no subscription shall be received or taken without such payment." L. 1850, c. 140, § 4. The referee to whom the case was referred, gave judgment in favor of the plaintiff, on the ground that the defendant was not discharged from his subscription by the omission to pay ten per cent. in cash at the time of subscribing, but that the giving of the notes which included the ten per cent. and the subsequent calls and the payment thereof, operated as a waiver of any right he might have had to repudiate his subscription, and was a ratification thereof. The judgment for plaintiff was reversed by the court at general term, and a new trial ordered, on the ground that although payment voluntarily made at a time subsequent to the subscription might ratify or perfect the act of subscription, yet the compulsory payment of a note given for the ten per cent. to a holder of the note, the maker being unable to resist its payment in the hands of a bona fide holder for value, did not in any way make valid the subscription, which was void without the payment of the ten per cent. From that decision the plaintiff appealed to this court. John H. Reynolds, for plaintiff, appellant. E. A. Brown, for defendant, respondent. BY THE COURT.-WRIGHT, J.-The defendant became a subscriber to the plaintiff's capital stock; but at the time of subscribing did not pay ten per cent. in money. Subsequently, by agreement, the original subscription was reduced from one thousand dollars to seven hundred dollars, and on two occasions he gave to the company two negotiable notes, in which were embraced and included the original ten per cent. and the several calls which had been made, and which were due and pay |