that he accepted the bonds believing that the corporation had been duly organized, and that the bonds had been lawfully issued, and were a first lien on the assets of a valid corporation. If so, manifestly, on discovering that he had been fraudulently imposed upon, one remedy open to him was rescission and restoration, and an accounting which requires the aid of a court of equity, and he cannot be deprived of that remedy on the theory that he may have an adequate remedy at law. It may well be that it would not be competent for a domestic corporation to obligate itself to the extent contemplated by the agreement under which the stock and bonds were to be exchanged, but that does not affect the plaintiff's right to rescind the contract on the facts alleged. The plaintiff brings this action in his own right, and not in the right of the New York Central Storage Company, and in so far as he prays for an accounting, which could only be had by that company, he will, of course, be afforded no relief in this action. It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. INGRAHAM, P. J., and SCOTT and MILLER, JJ., concur. DOWLING, J., dissents. (75 Misc. Rep. 226.) BARRETT v. RUSSELL. (Supreme Court, Special Term, New York County. January, 1912.) INJUNCTION (§ 33*)-ACTIONS-GROUND. Where a resident of New Jersey sues in Pennsylvania to recover on a cause of action assigned to him for loss of goods shipped from New York to a Southern state, it cannot be enjoined at the suit of the defendant, though it is alleged that the purpose is to evade the limitation of plaintiff's liability, which limitation is valid in New York, but not enforceable in Pennsylvania. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 70, 71; Dec. Dig. § 33.*] Action by William M. Barrett, as President of the Adams Express Company, against William T. Russell for an injunction. Denied. Guthrie, Bangs & Van Sinderen, for plaintiff. Tipple & Plitt, for defendant. BIJUR, J. This is a motion for an injunction to prevent the defendant from instituting any actions in Pennsylvania against the plaintiff (as president of Adams Express Company) arising out of the loss of goods shipped to persons in Georgia and Alabama by shippers in New York. The causes of action, it is alleged, were assigned to defendant by the consignees at the request of the shippers, and the purpose of defendant in bringing or threatening to bring suit in Pennsylvania is alleged to be to evade the limitation of plaintiff's liability for loss to $50 on shipments where no value is stated, as provided on the receipt given by the express company. The courts of New *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes York recognize the limitation as valid, whereas those of Pennsylvania decline to enforce the limitation. In substance, then, this is an attempt to enjoin the defendant from prosecuting foreign litigation, known as "harassing," because it is unconscionable, in that it is brought in another state to evade the substantive law of this state. I have had occasion recently to examine this question. See Miller v. Myers, 75 Misc. Rep. 297, 135 N. Y. Supp. 73. I know of no case where actions of this kind now sought to be restrained will be enjoined, except as between residents of the same state. It is not quite clear from the complaint and accompanying affidavits whether the original causes of action are held by the shippers in New York, or the consignees in the Southern states, or both; but in neither event is the bona fide character of the assignments to the defendants impeached, nor, indeed, are the shippers or consignees made parties to this action. We have then, at the best, a resident of New York (although it is not clear that the unincorporated Adams Express Company is to be so regarded) praying that an injunction issue against a resident of New Jersey (upon whom service of process in this state has been obtained) preventing him from bringing suit in Pennsylvania. Neither precedent (see, also, note to 10 Ann. Cas. 26) nor the rationale of the doctrine warrants my granting the relief prayed for. Motion denied, with $10 costs. DUCAS v. DUCAS. (Supreme Court, Appellate Division, First Department. May 3, 1912.) 1. CANCELLATION OF INSTRUMENTS (§ 35*)-SEPARATION AGREEMENT-SETTING ASIDE NECESSARY PARTIES. A wife sued to set aside for fraud a separation agreement joined in by herself, defendant (her husband), and a trustee, by which defendant agreed to pay to the trustee a certain sum each year for the wife's support, and a certain sum each year for the maintenance and education of the son during minority, and the trustee covenanted to indemnify the husband from any other claim or liability accruing after the date of the agreement, either for the wife's support or the son's maintenance. Code Civ. Proc. § 452, provides that the court may determine the controversy as between the parties before it where it can do so without prejudice to the rights of others or by saving their rights, but, where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. Held, that both the trustee and son were necessary parties, both having an interest in the agreement sought to be canceled, and the trustee being a party thereto. [Ed. Note.-For other cases, see Cancellation of Instruments, Cent. Dig. $ 55-65; Dec. Dig. § 35.*] 2. PARTIES (§ 32*)-EQUITY. As a rule, all persons interested in the subject-matter of a suit in equity or whose rights may be affected by the judgment should be made parties, to prevent a multiplicity of actions and secure a final determination of their rights. [Ed. Note. For other cases, see Parties, Dec. Dig. § 32.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Appeal from Special Term, New York County. Action by Rachel N. Ducas against Benjamin P. Ducas. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Reversed, and demurrer sustained. Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ. Edward W. Hatch, of New York City, for appellant. MCLAUGHLIN, J. Action between husband and wife to set aside a separation agreement on the ground of fraud. The agreement is annexed to and made a part of the complaint. It is between the defendant as party of the first part, plaintiff as party of the second part, and one Guggenheimer, as trustee, party of the third part. It provides that the parties of the first and second part shall live separate and apart from each other until the death of either one; that neither will at any time sue or suffer the other to be sued in an action for separation for living separate and apart from the other; that neither will compel the other to live with him or her; and that neither will disturb or molest the other. The custody of an infant son is awarded to the mother, subject to certain rights of the father, and the husband agrees that he will pay to the trustee named in the agreement the sum of $4,000 per annum for the maintenance and support of the wife during her life and $2,000 a year for the maintenance, support, and education of the son during his minority, such payments to be made in equal monthly installments on the 1st day of each month. The wife agrees to accept the provisions therein made in lieu of any and all other claims or provisions for her support or the support, maintenance, and education of the son. She and the trustee covenant and agree with the husband to indemnify and save him harmless from any other claim or liability accruing after the date of the agreement for her support and for the support, maintenance, and education of the son. The defendant demurred to the complaint upon two grounds: (a) That there is a defect of parties defendant in that Guggenheimer, the trustee, is not made a party; and (b) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled and defendant appeals. [1] The Code of Civil Procedure (section 452) provides that: "The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in." [2] It is a general rule in equity that all persons interested in the subject-matter of an action should be made parties in order to prevent a multiplicity of actions and secure a final determination of their respective rights. Osterhoudt v. Board of Supervisors, 98 N. Y. 239. All persons whose rights may be affected by the judgment should be made parties. Mahr v. N. U. F. Ins. Soc., 127 N. Y. 452, 28 N. E. 391; First National Bank v. Shuler, 153 N. Y. 163, 47 N. E. 262, 60 Am. St. Rep. 601. In Lord v. Lord, 68 Hun, 537, 22 N. Y. Supp. 1004, it was held that where an agreement of separation, made by the husband and wife and a trustee, contained a covenant on the part of the husband to pay certain annual sums to the trustee for the wife's support, and the trustee agreed to indemnify the husband for the wife's debts. the wife could not maintain an action against the husband without the presence of the trustee as a party. In Galusha v. Galusha, 138 N. Y. 272, 33 N. E. 1062, which was an appeal from a judgment of the late General Term affirming a judgment in favor of defendant sustaining a demurrer to the complaint in an action to set aside a separation agreement and for other relief, it was held that the trustee named in the agreement was a necessary party to the action. The court said, referring to the opinion delivered on a former appeal in the same case (116 N. Y. 635, 22 N. E. 1114, 6 L. R. A. 487, 15 Am. St. Rep. 453): "That decision is authority for two propositions which must be accepted as the law of this case: First, that the deed of separation cannot be annulled in an action to which the trustee is not a party. By the agreement here under consideration the payments were to be made not to the wife, but to the trustee for her benefit, as well as for the benefit of the son. If the husband had failed to make the payments as provided in the agreement, then the one to enforce the same would have been the trustee, and if the plaintiff should procure a judgment in this action, without the presence of the trustee and the infant, it is difficult to see what protection it would be to the trustee if he were called upon to enforce the agreement for the benefit of the son. The son certainly has an interest in the agreement, and it cannot be set aside without his having an opportunity to be heard. The trustee also has an interest because he covenanted to indemnify the husband against any claim for the support of the wife, or the support and education of the infant. He is also, being a party to the agreement, entitled to be heard upon the question of fraud. The judgment appealed from therefore is reversed, with costs, and the demurrer sustained, with costs on the first ground only, with leave to the plaintiff to serve an amended complaint on payment of the costs in this court and in the court below. All concur. (76 Misc. Rep. 429.) M. H. MARCUS & BRO. v. NATIONAL FILM DISTRIBUTING CO. (Supreme Court, Appellate Term. May 3, 1912.) 1. CORPORATIONS (§ 425*)-AUTHORITY OF OFFICER-EXECUTION OF NOTESESTOPPEL OF CORPORATION. Where, in an action by the innocent purchaser of a check given in the name of a corporation by its treasurer, there was no evidence that the plaintiff purchased the check with knowledge of any previous transacFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes tions between the payee and the corporation, the plaintiff could not set up that the treasurer had implied authority to execute the check because he had previously executed and delivered similar checks to the payee. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1697-1701, 1705; Dec. Dig. § 425.*] 2. CORPORATIONS (§ 432*)-OFFICERS-NEGOTIABLE INSTRUMENTS-EXECUTION. An innocent holder of a check given in the name of a corporation by its treasurer must prove the authority of the treasurer to give the instrument; the treasurer as such having no implied power to execute and deliver negotiable instruments. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. § 432.*] Appeal from Municipal Court, Borough of Manhattan, First District. Action by M. H. Marcus & Bro., a corporation, against the National Film Distributing Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered. Argued March term, 1912, before GUY, LEHMAN, and BIJUR, JJ. Benjamin F. Feiner, of New York City (Nathan Ballin, of New York City, of counsel), for appellant. Aaron Honig, of New York City, for respondent. GUY, J. The plaintiff, who is a bona fide holder for value, brings suit upon a check bearing the name of the defendant corporation, and underneath said name is the signature "Israel J. Ablowich, Treas." The evidence shows that the signature is the signature of the treasurer of defendant corporation, and that the check was executed and delivered by the treasurer of the defendant to the payee with the understanding and agreement that the check would not be paid unless countersigned by the vice president of the defendant corporation, and an agreement on the part of the payee that he would present it to the vice president and obtain the countersignature of the vice president before using the same. The evidence also shows that the by-laws of the corporation were amended about three weeks before the making of the check in suit, so as to provide that all checks should be countersigned by the vice president of the corporation, that this fact was known to the payee of the check in suit, and that he had previously received checks from the treasurer of the corporation, which were so countersigned by the vice president. The evidence further establishes that, prior to the adoption of the amendment to the by-laws providing for such countersigning of checks, the treasurer had, during a long course of business with this payee, given him checks signed only by the treasurer, which checks were subsequently signed by the defendant corporation. [1] The main ground of appeal urged by the appellant is that the plaintiff failed to show any authority in the treasurer to execute and deliver the check in suit. The respondent urges that, in view of the previous course of dealings between the corporation and the payee, and the fact that the payee had, previous to the adoption of the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |