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theatrical performances, and such alterations foreseen and stipulated against, yet if not rightfully could be classed as repairs, the actually contemplated by the parties at the plaintiff was under no obligation to make date of the lease, and hence forming no in, them, as this burden was cast upon the les ducement for its execution by the lessee, see, and a failure to do so did not constitute he may show such an oral modification. a breach of the covenant for quiet enjoy. Đurkin V, Cobleigh, 156 Mass. 108, 109, 30 ment. Roth V. Adams, 185 Mass. 341, 70 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. N. E. 415. To constitute a constructive evic 436; Rackemann v. Riverbank Improvement tion, which, while it continues, suspends the Co., 167 Mass. 1, 44 N. E. 990, 57 Am. St. payment of rent, it must affirmatively ap- | Rep. 427; Emerson v. Slater, 22 How. 28, pear that by his intentional and wrongful 16 L. Ed. 360; Witbeck v. Waine, 16 N. Y. act the landlord has deprived the tenant of 532. Compare McGlynn v. Brock, 111 Mass. the beneficial use and enjoyment of the 219; for this agreement, if founded upon a whole or a part of the leasehold. Royce v. good consideration, would be valid and enGuggenheim, 106 Mass. 20, 8 Am. Rep. 322; forceable. Rich v. Jackson, 4 Bro. Ch. 514; De Witt v. Pierson, 112 Mass. 8, 17 Am. Rep. Hastings v. Lovejoy, 140 Mass. 261, 265, 58; Colburn v. Morrill, 117 Mass. 262, 19 Am. 2 N. E. 776, 54 Am. Rep. 462; Thomas v. Rep. 415; Mirick v. Hoppin, 118 Mass. 582; Barnes, 156 Mass. 581, 31 N. E. 683. See Bartlett v. Farrington, ubi supra; Skally v. Vass v. Wales, 129 Mass. 38. If, under it, Shute, 132 Mass. 367; Smith v. McEnany, the defendant had gone forward, either with 170 Mass. 26, 48 N. E. 781, 64 Am. St. Rep. or, after reasonable notice, without the assent 272.

of the plaintiff, he could have recovered the But the answer does not allege that the expense incurred in adapting the building to action of the inspector of public buildings meet the demand of the inspector, as the les. was induced or incited by the plaintiff, and sor would have been benefited by the enhan. if, in the exercise of the police power, ex: ced value of the freehold. Myers v. Burns, 35 traordinary restrictions were imposed upon N. Y. 269; Cornell v. Vanartsdalen, 4 Pa. 364 ; the use of the property, there was no volun: Hayward v. Leonard, 7 Pick. 181, 19 Am. Dec. tary, unnecessary act on the part of the land. | 268. It is equally plain that the benefit to lord that tended to deprive the tenant of the the leasehold estate for the remainder of the premises and wbich would bring the case term was sufficient to support the promise on within Kansas Investment Co. v. Carter, 160 the part of the lessor. Hastings v. Lovejoy, Mass. 421, 36 N. E. 63, or Grabenhorst v. ubi supra ; Emerson V. Slater, ubi supra. Nicodemus, 42 Md. 236. The defendant, Or it might be said that the lease, as modi. moreover, did not abandon the premises, but fied by the oral agreement, constituted a subremained in occupation; and, if the lessor stituted contract supported by the original had taken such action, his conduet therefore consideration. Thomas v. Barnes, ubi supra. would have been no defense to a suit for . Under a broad interpretation that the lease the rent. Boston & Worcester Railroad Co. as thus amended demised a building to be v. Ripley, 13 Allen, 421; International Trust used for the purposes of a theater, in conCo. v. Shumann, 158 Mass. 287, 290, 291, 33 nection with which the plaintiff covenanted N. E. 509. A further allegation is found that to provide additional means of exit, if called the designated changes could not be made for by the public authorities, a failure to without causing structural alterations out- perform the promise does not constitute side of that portion of the building covered a defense to this action. When considered as by the lease, but there is no averment that a further covenant, this agreement is strictly upon request the plaintiff refused his assent | analogous to the ordinary undertaking of to such repairs being undertaken by the de. the landlord to make outside repairs, which tendant so far as they might be required to is independent of the lessee's obligation enable him to comply with the order. Up to pay the rent reserved ; and any neglect on making such a request, if it had been re by the plaintiff to make the improvements fused, and this action was found to have promised, even if, by force of the statute, been taken solely for the purpose of pre the premises without them became unfitted venting the defendant from realizing the full for use as a theater, did not, by reason of beneficial use and enjoyment of the estate, the breach, so long as the defendant chose whether he could have quitted the premises to occupy them, give to him any right to de and treated this refusal as a constructive cline payment of the rent. Kramer v. Cook, eviction it is not necessary to decide. See 7 Gray, 550 ; Leavitt v. Fletcher, 10 Allen, Sherman v. Williams, 113 Mass. 481, 18 Am. 119, 121; Royce v. Guggenheim, ubi supra ; Rep. 522; Skally v. Shute, ubi supra; Kansas Skally v. Shute, ubi supra. His remedy Investment Co. v. Carter, ubi supra; Inter would be by an independent suit for damages, national Trust Co. v. Shumann, ubi supra. or, when sued for the rent, by a counterclaim

We now come to the verbal agreement by in recoupment, which he has not pleaded. which the plaintiff is said to have engaged Holbrook v. Young, 108 Mass. 83, 85. See to make the alterations. While it may be Brown v. Holyoke Water Power Co., 152 Mass. said that the requirement which supports 463, 25 N. E. 966, 23 Am, St. Rep. 844. this promise rests upon a possible statutory Under the pleadings this conclusion folliability, wbich the defendant should have lows, even if the defendant has falled to

s this conclusailed to

aver that the building was constructed after , the right of the survivor terminated by the passage of St. 1894, p. 417, c. 382, the either party. Shaw v. Hearsey, 5 Mass. provisions of which were made applicable 521; Appleton v. Boyd, 7 Mass. 131; Wales only to buildings thereafter erected for use v. Coffin, 13 Allen 213; Pray v. Stebbins, as a theater; and we are not called upon to 141 Mass. 219, 4 N. E. 824, 55 Am, Rep. 462. decide whether the omission from Rev. Laws, See, also, Pease v. Whitman, 182 Mass. 363, c. 104, $ 36, of the express words of limita 65 N. E. 795; McLaughlin v. Rice, 185 Mass. tion as to the time of erection found in the 212, 70 N. E. 52, 102 Am. St. Rep. 339. By original statute, indicates a legislative in St. 1785, p. 554, c. 62, 8 4, the common law tention to put all buildings, whenever erected was changed, so that conveyances to two or and used in whole or in part for this pur more persons were to be interpreted as pose, on the same footing.

creating estates in common, unless it clear. Judgment affirmed.

ly appeared from the language that estates

in joint tenancy were intended. It was (189 Mass. 563)

held in the cases above cited that this statBOLAND v. McKOWEN et al.

ute did not apply to mortgages or convey.

ances to busband and wife. Rev. St. 1836, (Supreme Judicial Court of Massachusetts. Bristol. Dec. 1, 1905.)

c. 59, 88 10, 11, continue this statute in HUSBAND AND WIFE-MORTGAGES-ESTATES

force, with an expressed provision, in acBY ENTIRETY.

cordance with the previous decisions, that As St. 1883, p. 679, c. 237, providing that it should not "apply to mortgages, nor to conveyances to husband and wife shall con

devises or conveyances made in trust, or stitute an estate in common, expressly excepts

made to husband and wife," and the promortgages from its provisions, a note and mortgage executed to husband and wife and their vision remained without material change unheirs created an estate by the entirety, en til the enactment of St. 1885, p. 679, c. 237. titling the wife on surviving her husband to

Gen. St. 1860, c. 89, 88 13, 14; Pub. St. collect the same as against her husband's exec

1882, c. 126, 88 5, 6. By this last enactment utor. Appeal from

conveyances to husband and wife are inSuperior Court, Bristol

cluded in the provisions in regard to conCounty.

veyances to other persons, so that conveyAction by Agnes Boland against Catherine

ances and devises to busband and wife, McKowen and others, in which Edward J.

made since the enactment, do not create Boland, Jr., as executor of the estate of

estates by entirety unless an intention to Edward J. Boland, deceased, intervened,

create such an estate is expressed in the claiming the property in controversy. From

writing. But in this, as in the former stata judgment dismissing claimant's petition,

utes, mortgages are excepted from the prohe appeals. Affirmed.

vision, and these are left to be governed Richard P. Coughlin, for appellant. F. A. by the rules of the common law. Milliken, for appellees.

In Pray V. Stebbins, ubi supra, and in

Phelps V. Simons, 159 Mass. 415, 34 N. E. KNOWLTON. C. J. In 1894 certain real

657, 38 Am. St. Rep. 430, it was held that estate was conveyed to Edward J. Boland

the statutes in regard to the separate propand Agnes Boland; these persons being hus

erty and separate rights of married women band and wife. In 1902 they conveyed the

do not affect the common law in regard to property to Catherine McKowen and took

estates by entirety. In Draper v. Jackson, back from her, on the same day and as a

16 Mass. 480, the court decided, in an elabopart of the same transaction, a mortgage

rate opinion, that a note and mortgage to secure a part of the purchase money.

made to husband and wife go to the wife, The mortgage runs tò "said Edward J. Boland and Agnes Boland and their heirs,"

if she survives her husband, and not to

the executor of the husband. As a general etc., and the note secured by it is payable in like manner to them jointly. Edward

proposition, this is the law to-day; for, J. Boland having deceased, and the note

except St. 1885, p. 679, c. 237, just cited, remaining unpaid, the question before us

there is nothing in the statutes in regard is whether his widow, Agnes Boland, has

to married women which extends or limits a right to collect it, or whether the exec- | their rights, as against their husbands, in utor of the husband's will, Edward J. reference to property held under deeds or Boland, Jr., the present claimant, is entitled contracts running to them jointly. As at to one-balf of it. The estate of the husband the common law, husband and wife are left is ample to pay his debts, so that the rights incapable of making ordinary contracts with of creditors are not involved.

one another. Although this case presents no At common law a conveyance to two or such question as that upon which the court more persons, without special provisions, divided in Phelps v. Simons, 159 Mass. 415, created an estate in joint tenancy, unless 34 N. E. 657, 38 Am. St. Rep. 430 (see, also, these persons were husband and wife, in Draper 7. Jackson, 16 Mass. 480-486), the which case it created an estate by entirety, discussion in that case recognized tenancies which differs from a joint tenancy in the or ownership by entirety in personal propfact that the tenancy cannot be severed and erty, as well as in real estate. This view

of the court is sustained by the cases cited, not in fact Insolvent, and was not thereby in the opinion.

rendered insolvent. He found that the payUpon the facts before us in the present ment of dividends did not immediately procase, we are of opinion that the plaintiff duce insolvency, either by reducing the assets has the same rights as she would have had of the corporation below the amount of its if the common law had remained unchanged. debts or by depriving it of its cash resources Judgment for the plaintiff affirmed. needed for the payment of its immediate obli

gations in such a way as to bring down upon

it its creditors in a simultaneous demand for (189 Mass. 566)

payment of their debts. The master found ELLIS et al. V. FRENCH-CANADIAN

that making these dividends was one of the CO-OPERATIVE ASS'N et al.

causes of the ultimate insolvency of the cor(Supreme Judicial Court of Massachusetts.

poration, and the plaintiffs contend that this Essex. Dec. 1, 1905.)

finding brings the case within the statute 1. CORPORATIONS-LIABILITY OF OFFICERS TO CREDITORS - DIVIDENDS CAUSING INSOL

quoted above. VEN OY.

We are of opinion that the master was Under Rev. Laws, c. 110, $ 58, providing | right in his construction of the statute. The that the officers of a corporation shall be liable

provision was not intended to create a liabilfor its debts "for making or consenting to & dividend if the corporation is or thereby is ren

ity for paying a dividend when a corporation dered insolvent to the extent of such dividend," is solvent, and remains solvent, after the they are not liable for declaring and paying a payment is made. If a corporation which has dividend, the company not then being insolvent

once paid dividends becomes insolvent at any nor actually rendered insolvent thereby, though the dividend be one of several causes of in

time afterwards, the payment may be one of solvency which results a considerable time there the causes from which the insolvency finally after.

results; but, so far as this provision is con2. SAME-CO-OPERATIVE ASSOCIATION-FAIL.

cerned, there is no violation of law in making UBE TO ESTABLISH SINKING FUND. Declaring and paying a dividend in good

a dividend, unless the company is then infaith by a co-operative association, and with solvent or is actually rendered insolvent thereout fraud, in violation of Rev. Laws, C. 110,

by, even though the dividend may be one of $ 69, forbidding a distribution of earnings till

several causes of insolvency which results a a certain amount has been appropriated for a sinking fund, does not make the officers of the

considerable time afterwards. The dividends corporation liable to its creditors ; section 58 in this case were made in violation of Rev. declaring them so liable "in the following cases, Laws, C. 110, $ 69, which forbids a distriand not otherwise," and this not being one of the enumerated cases.

bution of earnings in such a corporation “un

less at least ten per cent of the net profits Appeal from Superior Court, Essex County.

have been appropriated for a contingent or Suit by Stearns R. Ellis and others against

sinking fund, until an amount has accumuthe French-Canadian Co-operative Associa

lated equal to thirty per cent of its capital tion and others. Bill dismissed, and plain

stock." Disobedience of this prohibition is tiffs appeal. Afirmed.

not made a ground of liability of the officers to Matthew A. Gregg, for appellants. W. J. the creditors of a corporation. The section Bradley and C. H. Rogers, for respondents. which is quoted does not include this as one

of the cases in which the creditors may proKNOWLTON, C. J. This is a suit in ceed against officers, and in terms it excludes equity brought by creditors of the defendant

liability in all cases other than those excorporation to enforce an alleged liability of pressly mentioned. If fraud or any other the directors, founded on their declaration conceivable misconduct of officers of a corand payment of dividends when, according to poration would entitle creditors to proceed the averment, the corporation was insolvent, against them for a remedy outside of this or was thereby rendered insolvent. The suit statute, which we do not intimate, we think is brought under the Rev. Laws, c. 110, $ 58. it plain that the statute covers the whole This section and the sections immediately fol subject of liability to creditors, as distin. lowing it are intended to cover the whole guished from liability to the corporation itself, subject of the liability of officers and stock. for mere official delinquency. Com. v. Cooley, holders for the debts of corporations which 10 Pick. 37; Com. v. Rumford Chemical are subject to the provisions of this chapter. Works, 16 Gray, 231, 232. The master has It begins with these words: “The officers of found that the directors, in their management a corporation which is subject to the provi. of the corporation and in making the divisions of this chapter shall be jointly and dends, acted in good faith, and were free from severally liable for its debts and contracts in intentional fraud. Their disregard of this the following cases and not otherwise." The provision of the statute and their failure in first mentioned case of liability of the presi other particulars to exercise good judgment in dent and directors of a corporation is "for the management of the business does not give making or consenting to a dividend, if the the creditors a right to hold them for the corporation is or thereby is rendered insol debts of the corporation. The evidence is not vent, to the extent of such dividend." The reported, and there is nothing to indicate that master has found that, at the time of the any one of the master's indings of fact is declaration and payment of the several divi | erroneous. dends made in this case, the corporation was Decree affirmed.

(189 Mass. 540)

way or after having altered or changed the HAFEY V. COMMONWEALTH.

construction of an existing way, to assess (Supreme Judicial Court of Massachusetts damages for property taken or injured, with. Hampden. Dec. 1, 1905.)

out an application by persons entitled to HIGHWAYS-INJURIES TO PROPERTY-ASSESS damages, or whether they ought not to act, MENT OF DAMAGES-STATUTES.

except in cases where damages are formally Rev. Laws, c. 47, § 9, provides that the

claimed by a petition. It has often been damages sustained by any person whose pro erty has been taken for, or has been injured by,

held by this court that when a board, charthe construction and alteration of a state high ged with the duty of assessing damages way, shall be determined by the bighway com for land taken or injured, fails to make an mission, and shall be paid by the commonwealth, and that a person who is aggrieved by such de

assessment, such failure is equivalent to ad mination, on petition in the superior court,

adjudication that there are no damages. may have such damages determined by a jury. Upon such failure the party aggrieved may Held, that it was the duty of such commission

apply for a trial by jury. Monagle v. Coun. to assess damages for land taken or injured, without an application by the landowner, and

ty Commissioners, 8 Cush. 360–362; Vise that the board's failure to do so was equivalent | cardi v. Great Barrington, 174 Mass. 406, to an adjudication that no damages were sus 54 N. E. 859; Driscoll v. Taunton, 160 Mass. tained, entitling the landowner to file a peti.

486, 36 N. E. 495; Albro v, Fall River, 175 tion for a jury in the superior court.

Mass. 590, 56 N. E. 894. The language Exceptions from Superior Court, Hamp

quoted above from section 9 is very similar den County.

in its substantive requirement to the lanPetition by James J. Hafey against the

guage of Rev. Laws, C. 48, 88 13, 14, in re commonwealth of Massachusetts for the as

gard to assessments by county commissionsessment of damages in the construction

ers of damages caused by the laying out, and alteration of a bighway. From an order

relocation, alteration, or discontinuance of granting the petition, defendant brings ex

a highway, or by specific repairs upon a ceptions. Overruled.

highway. In all such cases it is the duty J. B. Carroll and W. H. McClintock, for of the county commissioners to assess dama. plaintiff. Luther White, for the Common ges without an application by the land. wealth.

owner. It is true that the language relating

to such assessments by county commissionKNOWLTON, C. J. This is a petition for

ers requires them in terms to make return an assessment of damages alleged to have

of the damages. It is possible to found a been suffered by reason of the alteration

distinction upon this difference in the lanand construction of a road taken charge of

guage and upon other differences of proceby the highway commission as a state bigb

dure in the two classes of cases. But the way, under the provisions of Rev. Laws,

difference between this language in section C. 47, 88 5, 6. The petition was filed in the superior court, under section 9 of this chap

9 and that of Rev. Laws, c. 51, § 15, is still ter, and the contention of the respondent

greater, for under this latter section damages is that the court had no jurisdiction, be

are to be assessed only when the owner cause no application for an assessment had

"files his petition for compensation with the been made to the highway commission, and

mayor and aldermen or selectmen or road the commission had made no assessment.

commissioners." We think it is better to It was agreed at the trial “that no damages

hold that the statute puts upon the highway had been awarded by the highway commis

commission the duty to take notice of cases sion," and if we assume, in accordance with

in which their action causes damages to the respondent's contention, that this is

landowners, and to make assessments of equivalent to an agreement that the petitioner

these damages without waiting for an appli. did not apply to the commission for an as

cation. There is no provision in terms for sessment, we come directly to the principal a petition or application by a landowner question presented at the argument.

to the highway commission for an assessThe first part of said section 9 is as ment. This implies that the required de follows: "The damages sustained by any termination of damages by the commission person whose property has been taken for, shall be of its own motion, and that its or bas been injured by the construction or failure to award damages shall be treated alteration of such highway, shall be deter as an adjudication that there are no damamined by said commission and shall be ges. That the person aggrieved should have paid by the commonwealth. A person who an opportunity, under such circumstances, is aggrieved by such determination, may, to have his damages assessed by a jury, upon a petition filed in the superior court, 1 is in accordance with the intent manifested • • • bave said damages determined by by the Legislature in St. 1900, p. 224, C a jury,” etc. Our decision depends upon 299, which is embodied in Rev. Laws, Co whetber it is the duty of the highway com. 48, § 109. mission, at the time of laying out a new | Exceptions overruled

(183 N. Y.

| forming them or any person that the hotel DELANEY V. FLOOD.

conducted therein is a disorderly place, or (Court of Appeals of New York. Jan. 9, 1906.)

that it is likely to be raided by the police

department of the city of New York, or INJUNCTION - ENFORCEMENT OF CRIMINAL

that if a raid should be made upon said LAW-REMEDY AT LAW.

Where the police authority station officers | premises any person found therein at the outside of a place having a liquor tax certificate time would be liable to arrest, or by interon the suspicion that the place is a disorderly

fering in any other way by voluntary statehouse and notify customers, who are in the place or about to enter it, that it is likely to be

ments as to the character of said premises, raided at any moment and those found on the

or tbreats of possible raids to be made in or premises are liable to arrest, the proprietor, if upon them, or by interfering with any person injured thereby, may maintain an action under

they may see going into said premises, or Pen. Code, $ 556, or an action at law for damages, and is not entitled to an injunction to

by informing any person they may see going restrain the police authorities.

into said premises, or any person in or up

on said premises, that the said premises Appeal from Supreme Court, Appellate is a house of prostitution or notorious to the Division, First Department.

community, or is liable to be raided, or in Action by Timothy J. Delaney against

any way interfering with said premises by John F. Flood. From an order of the Ap

voluntary statements as to its character or pellate Division (94 N. Y. Supp. 1143, 105

possible raids.” App. Div. 642), affirming an order of the • The Appellate Division affirmed the order Special Term granting in part a motion for

of the Special Term, allowed an appeal to a temporary injunction, defendant appeals. this court, and certified the following quesReversed.

tions for our determination: “(1) Have the The plaintiff is in possession of premises police authorities the power to station policeat 54 Rivington street, in the city of New men outside of a place which has a liquor York, at which place he conducts what is tax license, and which they suspect of being commonly known as a “Raines Law Hotel.” a disorderly house, and to notify customers In connection therewith and upon the first who are in the place and those who are floor of the premises he maintains a saloon about to enter the premises that the place wherein liquors are sold under a liquor tax | is a disorderly house, and as such is likely certificate duly issued to him. The defend to be raided by the police at any moment, ant is a police captain in charge of the and that those who are in the place at the Twelfth police precinct in said city. As time of the raid are liable to arrest? (2) such captain he caused police officers under Do such acts constitute a trespass? (3) If his command to be stationed in front of so, will equity intervene to restrain such plaintiff's premises, who informed persons acts?” about to enter that the place was a disorder John J. Delany, Corp. Counsel (Theodore ly house, that it was likely to be raided by Connoly and Terence Farley, of counsel), for the police department, and that persons en appellant... tering would be liable to arrest if found therein. This action was commenced to re WERNER, J. (after stating the facts). strain the defendant from stationing police The three questions certified to us, when conofficers in front of said premises and from sidered separately, cannot be answered cateinterfering in any way with persons about gorically; but, when they are reduced in to enter the same, and also to recover dama terms to the concrete and practical issue inges against him personally upon the ground volved, they present a question of substantial that such action on his part constituted an importance that should be decided without unlawful interference with plaintiff's rights regard to mere matters of form. The quesand a trespass thereon. Before the trial of tion, in substance, is whether equity will the action an application was made at intervene to restrain the police authorities Special Term for an injunction pendente lite from stationing officers outside of a place restraining the defendant from doing the | having a liquor tax certificate, when such acts complained of. Upon the hearing of authorities suspect that place of being conthat application the question whether plain ducted as a disorderly house, and from notitiff's premises were conducted as a disorder fying customers who are in the place and ly house frequented by lewd women was those who are about to enter the same that contested upon conflicting affidavits. The it is a disorderly house which is likely to be learned court at Special Term denied the ap raided at any moment, and that those who plication in so far as it sought to restrain are on the premises at the time of such the posting of police officers in front of plain- raid are liable to arrest. The pivotal point tiff's premises, but granted an injunction around which this question revolves is that the order restraining the defendant and all plaintiff is engaged in the sale of intoxicating officers or agents under his control "from in liquors. That is a business which, when unany manner stopping any persons who may controlled and unregulated by law, is fraught desire to enter the premises known as No. with grave dangers to the public peace, 54 Rivington street, in the borough of Man health, morals, and safety; and even when battan, city of New York, or voluntarily in- | regulated by statute, as far as it may be, it

76 N.E.-14

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