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in the Wilson act of Congress relative to in- , far it was necessary or wise to include withtoxicating liquors (enacted August 8, 1890), ) in the penal provisions of the statute birds as in the present act. Yet it seems incredi of the same family and of a similar character, ble that Congress intended to suffer the state though differing in some respects. Of course, of Maine to seize liquor in original packages this statement is made within limits. To when brought from Massachusetts, but not protect pigeons, turkeys could not be exwhen brought from Canada or Europe. The cluded. In the present case, however, we are words of the section before us are sufficiently clear that the Legislature has acted within comprehensive to include all game brought its power. into the state from whatever place, and we The order of the Appellate Division in each do not think it profitable to enter into a ver case should be reversed, that of the Special bal analysis save in one respect. It is urged Term affirmed, and the relators remanded to that the concluding sentence of the section, custody. "This act shall not prevent the importation, transportation, or sale of birds or bird plum. GRAY, O'BRIEN, BARTLETT, WERNER, age manufactured from the feathers of barn. HISCOCK, and CHASE, JJ., concur. yard fowl," excludes all birds from its operation. We think not. The qualification Order reversed, etc. "manufactured from the feathers of barnyard fowl” applies as well to birds as to bird

(184 N. Y. 148) plumage. Birds mentioned in this sentence

LOFSTEN , BROOKLYN HEIGHTS R. CO. are plainly artificial birds, and so the Treas

(Court of Appeals of New York. Feb. 27, 1906.) ury Department of the United States has ruled.

1. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE.

Where a party by his own acts creates a The case of Silz is somewhat different. The

controlling presumption of contributory negliaffidavit on which the warrant in this case gence, he is guilty thereof, as a matter of law. was issued creates a strong suspicion that [Ed. Note.-For cases in point, see vol. 37, the prosecution was instituted by collusion. Cent. Dig. Negligence, $ 296.] It states, not only that the defendant had in 2. STREET RAILROADS-INJURY TO PEDESTRIAN.

In an action to recover for injuries receive his possession the probibited game, but also

ed by being struck by an electric car while crossalmost every fact by which the defendant's

ing the public street, evidence held to show that counsel hopes to relieve his client from the plaintiff failed to exercise ordinary prudence, penalties of the law, facts which it is diffi and was guilty of contributory negligence as a

matter of law. cult, if not impossible, to see how they could have been within the affiant's knowledge.

Appeal from Supreme Court, Appellate For that reason we should be inclined to re

Division, Second Department. fuse to entertain the cause had not the At Action by Charles Lofsten against the torney General intervened and prosecuted the Brooklyn Heights Railroad Company. From appeal. Substantially all the questions raised a judgment of the Appellate Division (89 N. by the affidavit, save one, are disposed of by Y. Supp. 1042, 97 App. Div. 395), affirming the views we have already expressed. The a judgment for plaintiff, defendant appeals. exception is the statement in the affidavit Reversed. That said imported golden plover and im I. R. Oeland, H. F. Ives, and George D. ported grouse are different varieties of game Yeomans, for appellant. James C. Cropsey birds from the game birds known as plover and Benjamin F. Norris, for respondent. and grouse in the state of New York, and from any birds native to America. They are HISCOCK, J. Plaintiff recovered a small different in form, shape, size, color, and verdict for personal injuries sustained marking from the game birds known as plover through being struck by one of defendant's and grouse in the state of New York." Of

cars as he was walking across one of its course, if the birds, the possession of which tracks in Fulton street in the borough of is charged against the relator, are not grouse Brooklyn. We think that the evidence showor birds of the grouse family, then no crime ed that he was guilty of contributory negis stated in the affidavit, and the relator ligence as a matter of law, and that the should be discharged. But in view of the judgment in his favor should be reversed. express allegation at the commencement of Plaintiff was a person of mature age. He the affidavit, that the defendant was posses walked upon the east side of Hoyt street to sed of one imported grouse, we are inclined Fulton street and there attempted to cross to the view that the statement quoted should the latter street and defendant's tracks therebe construed as meaning, not that the bird in. It was about 7:30 in the morning, and so possessed was not a grouse, but that it apparently broad daylight. When he got to was a different variety of grouse from that the curb upon the near side of Fulton street which is native to the state of New York. he looked and saw approaching at a distance So construed, this fact constitutes no defense, of not to exceed 50 feet the car which afternor does the allegation that they are differ- | ward struck him. This car was proceeding ent in form, shape, and color from native at a rate of five or six miles an hour as debirds. It was for the Legislature to deter- scribed by the only witness who spoke defmine, in the protection of native game, how | initely upon this subject. It was in the neighborhood of 14 feet from this curb from We have not failed to examine any of them, which plaintiff saw the car to the nearest but without reviewing them in detail, we rail of the track upon which he was struck think it fairly may be said that in each case According to his version there was nothing there were special circumstances which diswhatever to obstruct his view of the ap- , tinguished it from the one at bar, and preproaching car. Defendant's motorman as vents it from being an authority for the serted that there was a wagon which ob judgment appealed from. We think the scured his view of plaintiff, but the latter facts now presented come rather within the distinctly and expressly repudiated this application of the rules adopted as forbidstatement. There was nothing except the ding a recovery in the cases of Greene v. ordinary traffic in the street which could dis- Metr. Street Ry, Co., 100 App. Div. 303, 91 N. tract his attention, nor was there any claim Y. Supp. 426; Thompson v. Metr. Street Ry. upon his part that anything did distract it. Co., 89 App. Div. 10, 85 N. Y. Supp. 181; He was struck by the nearest forward corner Lynch v. Third Ave. R. Co., 88 App. Div. 604, of the car, but he seeks to mitigate the in 85 N, Y. Supp. 180; Weiss v. Metr. Street ference that he fairly walked into the car by Ry. Co., 33 App. Div. 221, 53 N. Y. Supp. 449; the assertion that when he had reached the Pinder v. Brooklyn Heights R. R. Co., 173 middle of the track, and saw the car upon N. Y. 519, 66 N. E. 405. him he stepped back a step. From the time The judgment should be reversed, and a plaintiff left the curb to the instant of the new trial granted, with costs to abide event collision he never looked at or in the direction of the approaching car, or by any other CULLEN, C. J., and GRAY, O'BRIEN, method so far as appears took the slightest BARTLETT, WERNER, and CHASE, JJ., pains to ascertain where it was until a concur. shout called his attention to it and looking up he saw it upon him.

Judgment reversed, etc. Without any lengthy discussion of the principles applicable to these facts, we think it is clear that the plaintiff did not exercise

(184 N. Y. 83) ordinary prudence. The mere statement of WORMSER V. METROPOLITAN ST. RY. his conduct impresses the mind at once that

Co. et al. in utter disregard of all precautions, he (Court of Appeals of New York. Feb. 13, 1906.) placed himself in front of defendant's car. | CORPORATIONS-SUIT BY STOCKHOLDER-ESThe car had only a comparatively few feet TOPPEL. to go to cross the line of plaintiff's course

Where a stockholder, with knowledge of

the character of certain acts of the corporation, when the latter left the curb. When he saw

has accepted pecuniary benefits thereunder, he it, it was proceeding at a considerably more cannot sue to restrain the corporation from rapid pace than he was. By the time he had

carrying out such acts, and have the same set proceeded from the curb to the track the car

aside as illegal, on the ground that they are

ultra vires, though neither mala prohibita or had so covered its distance that it was

mala in se. practically upon him as he stepped upon the [Ed. Note.-For cases in point, see vol. 12 track. If he had exercised the slightest heed Cent. Dig. Corporations, $ 1563.) by either looking or listening he would have detected its presence in such close proximity

Appeal from Supreme Court, Appellate Di

vision; First Department. as to disclose at once the foolhardiness of stepping upon the track in front of it. Noth

Action by Isidor Wormser, Jr., against the ing put utter oblivion of his surroundings

Metropolitan Street Railway Company and and of his obligations could mislead a tray.

others. From a judgment of the Appellate eler into the conduct displayed by plaintiff.

Division (90 N. Y. Supp. 714, 98 App. Dir. It is true that the defendant's employés were

29), affirming a judgment for defendants, under the obligation to manage the car with

plaintiff appeals. Affirmed. care and prudence, but this obligation of In February, 1902, the president of the care was not confined to them. It also rest Metropolitan Street Railway Company comed upon the plaintiff, and their negligence, municated in writing to the stockholders of if they were guilty of it, did not relieve him that corporation a plan for providing money from the consequences of his own fault. We (approximately $23,000,000) to pay its unare fully mindful of the proposition urged by funded debt incurred in the purchase of stock plaintiff that ordinarily the question of con of the Third Avenue Railroad Company, and tributory negligence is one of fact for the to defray the expense of extending its elec jury. But, of course, there are limits to trical system to 80 miles of railroad lines this rule, and a party may create a con still operated by horsepower. That communitrolling presumption of law that he has been cation stated the plan or proposition as foldeficient in ordinary caution. The plaintiff lows: A corporation known as the "Metroin this case seems to have reached such politan Securities Company" had been or limit, and to have created such presumption. ganized under the laws of New York, with

Many cases have been called to our atten- a capital stock of $30,000,000, all of which tion by the learned counsel for the plaintiff had been underwritten at par by Messrs. as sustaining the latter's right to recover. | Kuhn, Loeb & Co., conditioned upon the ratification of the lease hereinafter mention- | which was thereafter carried out. The presed. The Metropolitan Securities Company ent suit is an action of equitable nature, bad acquired all the outstanding capital and brought by a stockholder of the Metropolitan stock and other securities of the Interurban Street Railway Company, on behalf of himStreet Railway Company, a corporation with | self and all other stockholders of the coran authorized capital stock of $20,000,000, poration similarly situated, who may elect owning and controlling franchises for the to come in, to enjoin the Metropolitan Street construction and operation of street railroads Railway Company and the Interurban Street on an extensive mileage in the borough of Railway Company, their officers and agents, the Bronx and adjacent territory. An agree from carrying out the said lease, plan, or ment bad been entered into between the arrangement, and to have the same set aside Metropolitan Securities and the Interurban as illegal and void. The complaint attacks Street Railway Company, whereby the Se the scheme as fraudulent in fact, and assigns curities Company was to pay into tủe four specifications of fraud as follows: (1) treasury of the Interurban Company at least That the proposed lease is fraudulent because $23,000,000 in cash, receiving in return stock it limits the rent to 7 per cent. on the Metroof the Interurban company at par and inter politan stock, while the actual earnings of est-bearing 4 per cent. debentures. An agree the Metropolitan Company are alleged to exment or lease had been entered into, subject ceed 7 per cent., and will in the near future, to the approval of the stockholders, between as the plaintiff believes, exceed 10 per cent ; the Metropolitan Street Railway Company (2) that the Interurban Company has no as lessor and the Interurban Street Railway sufficient property to secure the payment of Company as lessee, whereby, among other the 7 per cent. guarantied by it, nor does things, the lessee agreed (1) to assume the It possess any property or means from which fixed charges of the Metropolitan Street Rall said rental can be paid; (3) that the obliga. way Company and unconditionally guaranty tions of the Metropolitan Company to the 7 per cent. per annum upon the entire amount citizens of the borough of Manhattan for of its capital stock, payable quarterly; and conveying passengers therein cannot legally (2) to pay $23,000,000 into the treasury of | be devolved upon the Interurban Company; the Metropolitan Street Railway Company in and (4) that the privilege offered to the return for the securities, which should be stockholders of the Metropolitan Street Railliberated by the payment of the unfunded way Company to subscribe to the stock of debt, and other almost entirely unproductive the Metropolitan Securities Company is in assets, said sum of money to be expended in effect a bribe. At the time of the commence liquidating the unfunded debt, and in com ment of this suit the plaintiff owned 1,000 pleting the electrical equipment of the Metro shares of the stock of the Metropolitan Street politan System, and to be paid as required Railway Company. Before the answer was for those purposes. As a part of the pro interposed be exercised the option, conferred posed arrangement, the stockholders of the upon the Metropolitan Railway stockholders Metropolitan Street Railway Company were by the aforesaid plan, of subscribing to the to be accorded the privilege of subscribing capital stock of the Metropolitan Securities at par for an amount of the stock of the

Company in respect of 885 of his shares, and Metropolitan Securities Company equal to 45 sold his option or privilege to third parties, per cent. of the par value of the capital receiving therefor over $5,000. The answers stock of the Metropolitan Street Railway

of the defendants denied all allegations of Company; that is to say, they were to be al

fraud, and set up the exercise of this option lowed to subscribe for $23,400,000 of such

by the plaintiff as a separate defense. No stock out of the total capital of $30,000,000.

other stockholder joined with the plaintiff in It was also proposed, in connection with the

the prosecution of the suit. Upon the trial foregoing plan, that the Metropolitan Street

of the case at Special Term judgment was Railway Company should create a refunding

rendered dismissing the complaint upon the mortgage, the details of which arrangement

merits, and findings were made which negaIt is unnecessary to state, as they are not tive all charges of actual fraud. The judgmaterial here.

ment of the Special Term was unanimously The said communication of the president

affirmed by the Appellate Division. of the Metropolitan Street Railway Company

Francis K. Pendleton and Albert Stickney, also stated, as was the fact, that a meeting

for appellant. Charles F. Brown, Paul D. of the stockholders had been called for March

Cravath, and William D. Guthrie, for re20, 1902, to act upon the agreement or lease with the Interurban Street Railway Com

spondents. pany, and to authorize the proposed refund. WILLARD BARTLETT, J. (after stating ing mortgage. At a meeting of the stock the facts). Where the objection to the acts holders of the Metropolitan Street Rallway of a corporation is that they are ultra vires, Company the lease and plan were assented without being either mala prohibita or mala to by a large majority of the stockholders, in se, a stockholder cannot maintain an acand thereafter 99 per cent of all the stock. tion in his own behalf based on such obholders, including those who voted at thejection, where he himself, with knowledge of meeting, acquiesced in the arrangement li the character of the acts, bas acquired and

accepted pecuniary benefits thereunder., organization, yet their subscriptions, in the Whether his conduct in so doing constitutes absence of any proper allegation otherwise, an estoppel in the strict sense of that term, must be presumed to have been made at such or a quasi estoppel, as Mr. Bigelow puts it time as justified the respondents in assuming (Bigelow on Estoppel [4th Ed.], c. 19), or be that the lamp company was authorized, so denominated merely an acquiescence or an far as the complainants were concerned, to reelection, or the assumption of a position in ceive the transfer of the property of the old consistent with an attack, makes no essential corporation, and to commence and carry on difference here. The point is that the seek its manufacturing business, thus involving ing and acceptance of a substantial benefit, | itself in the liabilities and other complicawhich would be unavailable to the stock tions inevitably arising therefrom. That holders, except as a result of the acts which this raised an estoppel in equity as against a he would attack as ultra vires preclude him bill praying rescission is too clear to need disfrom assailing those acts on that ground. A cussion. It is true that complainants allege litigant is not at liberty to deny the validity that this subscription was under protest, of a contract, which is neither prohibited by and only to preserve their rights; but the law nor evil in itself, after he has knowingly bill does not give the court any details which sought and obtained pecuniary advantages,

would enable it to perceive that, by any pay or compensation, under and by virtue of

possibility, the effect of the subscription, such contract.

which of itself would be an accomplished This doctrine applies to the present case, fact, could be overcome by any protest or and is conclusive against the maintenance of other formal reservation which might acthis action by the plaintiff. He has sold the

company it." privilege attaching to 885 of his Metropolitan

In Towers v. African Tug Company (L. R. Railway Company shares to subscribe to the

[1 Ch. 1904], 558), which was a suit by two stock of the Metropolitan Securities Com shareholders of the defendant to compel the pany for between $5,000 and $6,000. This directors to repay to the company the amount privilege would have been absolutely non of a dividend illegally, though honestly, deexistent, except for the plan and lease which clared and paid, the decision of the English he attacks in this suit. He was well aware Court of Appeal is accurately stated in the of this, and he cannot avail himself of the head note as follows: "A shareholder in a privilege and at the same time prosecute the limited company who has, with full notice or suit. The officers of a corporation who are

knowledge of the facts, himself received part sued by stockholders for damages due to of the proceeds of an ultra vires act comcarrying on business not authorized by its mitted by the directors such as payment of a charter may defend by showing the stock dividend out of capital-and who still retains holders' acquiescence in or assent to the busi the money, cannot, either individually or as ness, express or implied. Holmes v. Willard, suing on behalf of the general body of share125 N. Y. 75, 82, 25 N. E. 1083, 11 L. R. A. holders maintain an action against those 170.

directors." Lord Justice Vaughn-Williams, in In Post v. Beacon Vacuum Pump & Elec the course of his opinion, says: If it be the trical Co., 84 Fed. 371, 28 C. C. A. 431, the fact, as I think it is, that these plaintiffs United States Circuit Court of Appeals in

knew of all that had been done, received their the First Circuit considered the sufficiency dividends with knowledge of all the facts, of a bill in equity filed by stockholders of the and then brought this action with the money Beacon Vacuum Pump & Electrical Com still in their pockets, ought they to be allowed pany to rescind a transfer of its property to to bring this action, which, as I have pointed the Beacon Lamp Company; and it was held out, is, to my mind, an action such as they that the complainants being minority stock can bring in consequence of their personal holders who opposed the transfer were estop interest in the matter? I think not. I think ped from maintaining a suit for rescission on that an action cannot be brought by an the ground of ultra vires, because they had individual shareholder complaining of an act subscribed for their proportion of the stock which is ultra vires if he himself has in his of the new corporation, although under pro pocket at the time he brings the action some test, and had permitted such company to 1 of the proceeds of that very ultra vires act. conduct the business for 18 months. "It is Nor, in my opinion, does it alter matters that clear,” said Putnam, C. J., "that the com he represents himself as suing on behalf of pláinants have not maintained that consist himself and others. I think that the reason ent position necessary to relieve them against which requires us to say he ought not to an equitable estoppel. They admit that they bring such an action equally requires us to have subscribed for their proportion of the say that he ought not to be the peg upon 32,000 shares of stock in the new corpora which such an action is to be hung for the tion. They do not state the date when they benefit of others." made the subscription. The transfer of the The proposition that one may not deny the assets to this corporation was made in July, validity of a contract under which he has 1895, and the bill was not filed until the 12th taken advantages was forcibly asserted by the day of January, 1897, so that, although at | Supreme Court of the United States in the the outset they protested against the re case of United States ex rel. International Contracting Co. v. Lamont, 155 U. S. 303, 15 i avoidance or defense. Lyon V. Brooks, 2 Sup. Ct. 97, 39 L. 'Ed. 160. There the relator Edw. Ch. 110. Nor is there any such prohibiapplied for a writ of mandamus against the tion under the Code. See Beebe v. Dowd, 22 Secretary of War to compel him to execute | Barb. 255, 259. As was said by the late and deliver a contract under an advertisement Mr. Justice Hardin, in Mann v. City of Utica, for bids for dredging, which contract the 44 How. Prac. 334, 339: "It is a familiar řelator claimed to have entered into with the rule in equity cases which permits courts to Secretary, so as to render it enforceable. The take into consideration subsequent events Supreme Court refused to consider any ques happening after the commencement of the action as to whether the contract was to be tion in equity and determining what relief regarded as complete or as to the authority shall be granted, especially where part of the of the Secretary of War in the premises, be- relief asked for is an injunction from the court cause it appeared that at the time when the to restrain parties." application for the mandamus was made the For the reasons which have been stated, relator had voluntarily entered into a second and without considering or deciding the other contract to do the same work at a lower price questions discussed by counsel, we conclude and on different terms, and had already been that this judgment should be affirmed, with paid on account thereof. "Even if the writ of costs. mandamus could be so perverted as to make Judgment affirmed. it serve the purposes of an ordinary suit," said Mr. Justice White, “the relator is in no CULLEN, C. J., and O'BRIEN, HAIGHT, position to avail himself of such relief. He VANN, WERNER, and HISCOCK, JJ., entered of his own accord into the second concur. contract, and has acted under it and has taken advantages which resulted from his action under it, having received the compen

(191 Mass. 20) sation wbich was to be paid under its terms.

BURKE V. DAVIS. Having done all this he is estopped from (Supreme Judicial Court of Massachusetts. denying the validity of the contract. Citing

Suffolk. March 2, 1906.) Oregonian Railway V. Oregon Railway (C. 1. MASTER AND SERVANT-SERVANTS INJURIES C.) 10 Sawy. 464, 22 Fed. 245. Nor does the

-DANGEROUS MACHINERY.

In an action by a servant for injuries owfact that in making his second contract the

ing to her hand having been drawn into a relator protested that he had rights under mangle in defendant's laundry, she was not enthe first better bis position. If he had any titled to recover, though it was shown that the such rights and desired to maintain them he

superintendent had told her that the guard on

the machine would prevent such an accident, should have abstained from putting himself in

where it appeared that plaintiff was afraid of a position where he voluntarily took advan the machine. notwithstanding the guard, and tage of the second opportunity to secure the

knew that the guard would not prevent such work. A party cannot avoid the legal conse

an accident.

(Ed. Note.-For cases in point, see vol. 34, quences of his acts by protesting at the time

Cent. Dig. Master and Servant, 88 574600.] he does them that he does not intend to

2. SAME-ASSUMPTION OF RISK. subject himself to such consequences.”

The fact that a servant consented to underAs was said by the Supreme Court of Ala take the work reluctantly, and under threat of bama in Robinson v. Pebworth, 71 Ala. 240, dismissal, did not save her from assuming

obvious risks. estoppel in a case of this character "simply

(Ed. Note.—For cases in point, see vol. 34, means that you shall not take the fruits of

Cent. Dig. Master and Servant, § 650.] an illegal transaction and afterwards set the transaction aside as illegal.” In holding that

Exceptions from Superior Court, Suffolk the plaintiff here is precluded from attacking

County; Jas. B. Richardson, Judge. the plan and lease in question by reason of

Action by one Burke against one Davis. his sale of the privileges acquired by him

Judgment in favor of defendant, and plainthereunder as a stockholder in the Metro

tiff brings exceptions. Exceptions overruled. politan Railway Company, we do not pass Maurice M. Lynch and John B. Moran, for upon the legality of the scheme, either to con- plaintiff. Romney Spring and Harry H. Atdemn or approve it; we simply decide that, wood, for defendant. even assuming it to be as unlawful as he alleges, he is in no position to assail it. This SHELDON, J. This is an action of tort, defense is available to the respondents not- / brought under Rev. Laws, c. 106. & 71. to rewithstanding the fact that the plaintiff did cover damages for injuries received by the not sell his privileges until after the begin. plaintiff while in the employ of the defendning of the suit. Matters which arise be ant, and engaged in feeding sheets through a tween the bill and plea may be pleaded in mangle for the purpose of drying and equity. Turner V. Robinson, 1 Simons & smoothing them. The action is based on the Stuart, 3. Under the old chancery system in alleged negligence of the defendant in pla. this state, there was no rule of equity plead- cing the guard blade in front of the rollers ing whereby a defendant was precluded from of the mangle too high, so that the plaintiff's availing himself of matters arising between hand passed under them, and was caught the filing of the bill and answer, by way of l between the rollers and seriously injured.

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