beams to make the title to the premises absolutely good, it is clear that the plaintiff was not in a position to insist upon a rescission of the contract, or to recover damages or the purchase price paid by his assignor.

A

But there is another ground upon which this judgment should be reversed. By the contract the parties mutually agreed that the payment of the unpaid consideration and the transfer of the title should be dependent and concurrent acts. A time and place were mentioned when the agreement was to be performed. The acts of one party were dependent upon the acts of the other. While the defendant tendered a sufficient deed of the premises, and offered to perform any and every act necessary to the full and complete performance of the contract upon his part, there is no allegation nor proof that the plaintiff or his assignor offered or tendered performance upon his part, or demanded performance by the defendant. It is a wellsettled rule that to entitle a party to recover damages for the breach of an executory contract of this character he must show a tender of performance upon his part, and a demand of performance by the other party. It must be established in some way that the other party is in default, or that performance or tender of performance has been waived. tender of performance may be dispensed with when it appears that the vendor has absolutely disabled himself from performing on his part, but, unless that appears, a tender of performance by the vendee must be made, if not waived. In this case there was no proof that the defendant waived such a tender, either by words or conduct. Nor was it shown that he was unable to perform the contract upon his part. But the proof was that the defendant, at the time and place mentioned in the agreement, was there, ready and willing to perform the contract, and to obriate and remove every objection to the title raised by the plaintiff. Clearly, the court was not justified in holding that the defendant was unable to perform the contract upon his part, or that it was impossible for him to convey a good title, within the rule which dispenses with the necessity of tender and demand in order to work a breach of such a contract. The agreement was not broken by the fact that there was a mortgage upon the property on St. Luke's place, which, it was alleged, might interfere with the defendant's release of the easement in the Hudson street house. The mere existence on that day of an incumbrance on the property, which it was within the power of the vendor to remove, did not constitute a breach of the contract between the parties. The decision of this court in Ziehen v. Smith, 148 N. Y. 558, 42 N. E. 1080, seems to be decisive of this question. It was there held that the mere fact that at the time fixed for the concurrent and mutual performance of an executory contract for the conveyance of real estate there existed a lien or incumbrance 50 N.E.-19

upon the property which it was within the power of the vendor to remove, did not relieve the vendee from making a tender and demand of performance as a condition precedent to the maintenance of an action to recover the money paid on the contract, or for damages as for its breach on the part of the vendor. In that case, as in this, there was no proof that the defendant waived tender or demand. There the alleged obstacle to the performance on the part of the defendant was the existence of a mortgage which was given by a former owner, and upon which a judgment of foreclosure had been entered. This court decided that even under those circumstances it could not be said that the existence of the mortgage and judgment placed the defendant in such a position that he was unable to perform the contract upon his part, or that it was impossible for him to convey within the meaning of the rule which dispenses with the necessity of tender and demand in order to work a breach of an executory contract for the sale of land, and that the contract was not broken by the mere fact of the existence on the day of performance of some lien or incumbrance which it was within the power of the vendor to remove. In that case the rule was stated by Judge O'Brien as follows: "The general rule, however, to be deduced from an examination of the leading authorities, seems to be that in cases where, by the terms of the contract, the acts of the parties are to be concurrent, it is the duty of him who seeks to maintain an action for a breach of the contract, either by way of damages for the nonperformance or for the recovery of money paid thereon, not only to be ready and willing to perform on his part, but he must demand performance from the other party." Following the principle of that case, it is obvious that the plaintiff was not in a position to maintain this action without a tender of performance upon his part, and a demand of performance by the defendant. He made no such tender or demand, and therefore the defendant was not in default, and the judgment in this action is not sustained by the proof. The judgment of the courts below should be reversed, and a new trial granted, with costs to abide the event. All concur. Judgment reversed, etc.

WHITE CORBIN & CO. v. JONES. (Court of Appeals of New York. April 19, 1898.)

EVIDENCE-DECLARATIONS OF THIRD PERSON.

Upon the trial of an action against a stockholder in a corporation, turning upon the question whether there had been an intentional overvaluation, by the trustees of a corporation, of the property taken in payment for a part of its stock, one of the persons by whom such property had been transferred for the stock was permitted to testify, against the objection and exception of the defendant, to a conversation with a third party in which such third party

asserted that the stock was "watered," the witness admitted it, and gave to such third party a portion of the stock issued in excess of the value of the property, to induce him to invest in the corporation. Held error, requiring a reversal of the judgment against defendant.

Appeal from supreme court, general term, Fifth department.

Action by White Corbin & Co. against William Martin Jones. From a judgment of the general term (34 N. Y. Supp. 203) affirming a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

W. Martin Jones, for appellant. David Hays, for respondent.

PARKER, C. J. As the record comes to us, It appears that the trustees of the Rochester Lithographing & Printing Company, at the time of its incorporation under the "Manufacturing Corporations Act," intentionally overvalued the property which was transferred to it in payment of a portion of its stock. About a year later, this defendant was persuaded by one of the original promoters of the corporation to purchase some of its shares. Finding subsequently that stock, amounting to $12,700, still remained in the treasury of the company, this defendant and four associates took it up, paying par therefor, and immediately filed and recorded a certificate to the effect that the capital stock of the company had been fully paid up. Thereafter, the Rochester Lithographing & Printing Company became indebted to the plaintiff in this action, which indebtedness it neglected to discharge when the account matured, and it subsequently became insolvent. This action is brought to charge the defendant with liability for the amount due from the Rochester Lithographing & Printing Company, on the ground that, as a stockholder of such company, he is liable to creditors to the extent of the face value of the stock held by him, because the capital stock of the company was not in fact paid up, in that a portion of the stock was issued in payment for property at an overvaluation.

Judgment having gone against the defendant, he insists, upon this appeal, that an innocent purchaser of stock of a corporation organized under the manufacturing corporations act is not made liable for the debts of a corporation incurred after the filing of a certificate that the stock has been fully paid up, by proof that property at an overvaluation was accepted in payment for the stock of the company by the trustees, with full knowledge that such was the fact, where it also appears that the stockholder purchased without knowledge of the fraud, and also without such information as to the facts as should have put him on inquiry. The appellant is, however, mistaken in his assumption that this question is before the court. It was not raised in the court below. Neither on a motion to dismiss the complaint made when

plaintiff rested, nor at the end of the whole trial, was the question presented. Nor were there any requests to charge which would suggest to the mind of the court that the defendant claimed protection as a good-faith purchaser of stock, as against a creditor of the corporation, who became such after the filing of the certificate declaring that the stock of the company had been fully paid. Had any or all of these things been done, there would have remained the further difficulty that the defendant omitted to show, by his own testimony or otherwise, that, when he purchased the stock, he was in fact ignorant of the alleged overvaluation of the property for which the trustees issued the stock. The question is not therefore before us, and cannot be considered.

Exceptions were, however, taken to the admission of evidence against the objection of the defendant, which, we think, call for a reversal of the judgment. Upon the question of overvaluation there was a sharp conflict of testimony. John W. Pitt, who seems to have originated the idea of consolidating the lithographic business of Willard, Pitt & Moore with the printing business of Goble & Vredenburg, was very emphatic in his testimony that there was not only an overvaluation of the property, but the trustees knew of it. Goble & Vredenburg each testified that the presses, machinery, and type, together with the good will of their business, were equal in value to the amount of the stock received by them, and that they supposed that such was the case with the property and good will of the business of Willard, Pitt & Moore; and, as we have observed, the strain of the case as it was presented to the court was whether this property was in fact deliberately overvalued by the trustees.

The witness Pitt, after testifying that he had received 110 shares in excess of the valuation of the property, and had given 20 of the shares to a man by the name of Hussey, whom he had persuaded to buy $5,500 worth of stock at par, was asked: "Q. I wish you would state how it came that Hussey received 20 shares of that stock, when, as you say, you owned the property for which it was issued?" To this the defendant objected as immaterial and incompetent; whereupon plaintiff's counsel stated that he proposed to show the conversation between Hussey and Pitt. The objection was then overruled, and defendant excepted. The witness answered, in substance, that he had invited Hussey to look the plant over with the idea of investing some money; that he had conceded to Hussey 20 shares of his stock, in order to get him to invest; and that he had a conversation with him on the subject. Defendant renewed his objection to any conversation between the parties. The objection was overruled, and defendant again excepted. It will be observed that the fact that the witness had given Hussey 20 shares of the stock which he had received was testified to with

out objection; but, as against the mischief which might be the result of the conversation between Pitt and Hussey, the defendant used every effort to protect himself, and, as the result shows, wisely. The witness was allowed to give the conversation, however; and it will quite readily appear from a perusal of it that it could not have been otherwise than injurious to the defendant.

To the question, "What was said, or the substance of it, according to your best recollection?" the witness answered: "Mr. Hussey insisted that there was 'water' in the statement that we had made to him, and wanted his share of it if he invested any money,-wanted his share of the watered stock; and, in order to get him to invest any money, I divided the 'water' I had, which was supposed to be the same amount which was conceded to Goble & Vredenburg." It is difficult to imagine a more harmful answer than the one given, in view of the issue, which was whether there was intentional overvaluation. The word "water" used in connection with the issue of stock has a well-understood meaning, and, as here used, it conveyed necessarily to the minds of the jury that Pitt and Hussey had conducted their negotiations upon a basis which assumed the fact to be that 110 shares had been issued to Pitt, for which the corporation received nothing whatever; that preliminarily Hussey asserted such to be the fact, and Pitt admitted it, whereupon negotiations proceeded upon that basis to a successful result from the standpoint of Pitt. This evidence was, of course, unanswered, for Hussey was not present at the trial; and it is quite likely that the thing testified to was considered by the jury as an uncontradicted fact of importance, for it was received by the court after several ineffectual efforts of defendant to exclude it. It is sufficient, however, to call for a reversal of the judgment that the court cannot say that this incompetent evidence did not affect the result. The judgment should be reversed, and a new trial granted, with costs to abide the event. All concur. Judgment reversed, etc.

SCHNEIDER v. CITY OF ROCHESTER. (Court of Appeals of New York. April 26, 1898.)

APPEAL-REVIEW-TEMPORARY INJUNCTION. An order of a general term affirming or reversing an crder granting or denying a temporary injunction cannot be reviewed by the court of appeals unless it appears from the record that the element of discretion was excluded, or that the injunction was sustained when in fact there was no power to grant it, or was set aside expressly upon that ground.

Appeal from supreme court, general term, Fifth department.

Action by Matilda Schneider against the city of Rochester. From an order of the general term (35 N. Y. Supp. 786) reversing

an order granting a preliminary injunction, plaintiff appeals. Dismissed.

Elbridge L. Adams, for appellant. A. J. Rodenbeck, for respondent.

VANN, J. Under the condemnation provisions of the charter of the city of Rochester, regular proceedings were instituted to acquire title to certain lands of the plaintiff for the purpose of a public improvement. Laws 1880, c. 14, §§ 173-197, as amended by Laws 1882, c. 120; Laws 1890, c. 561; and Laws 1892, c. 190. Commissioners of appraisal were duly appointed, and their report, awarding $40,000 to the plaintiff, was filed with the city clerk. Section 179 of the charter provides that "upon the filing of such report the said common council shall assign a time for hearing objections to the confirmation thereof, and at the time assigned shall hear the allegations of all persons interested, and may take proof in relation thereto from time to time, and shall confirm the said report, or may set the same aside and refer the matter to the same or to new commissioners to be appointed by the said court as before, who shall, thereupon, proceed as hereinbefore provided. But the common council may set aside said report and abandon said improvement at any time before the final confirmation of the assessment roll hereafter mentioned." Upon the day fixed for hearing objections, none were made, except by the city, through its attorney, who stated no ground, so far as appears, and no proof upon the subject was taken. The plaintiff, while making no objection to the report, insisted that, if it should be set aside, the proceedings for the proposed improvement should be abandoned. The common council set aside the report, and referred the matter to new commissioners, to be appointed by the county court of Monroe county, and directed the city attorney to make the necessary application. Thereupon the plaintiff commenced this action to restrain the defendant from applying to any court for the appointment of new commissioners, upon the ground that the charter gave no such power, or, if it did, that it was, to that extent, unconstitutional. Upon notice to the defendant, a temporary injunction was granted by the special term, but the same was set aside by the general term, and the plaintiff now comes here.

The first question that confronts us is whether the order in question is appealable to this court. As a general rule, an order refusing or vacating a temporary injunction rests in the sound discretion of the supreme court, and is not subject to review by this court. People v. Schoonmaker, 50 N. Y. 499; Pfohl v. Sampson, 59 N. Y. 174; Calkin v. Oil Co., 65 N. Y. 557; Selchow v. Baker, 93 N. Y. 59; Williams v. Telegraph Co., 93 N. Y. 640; Strasser v. Moonelis, 108 N. Y. 611, 15 N. E. 730; Baylies, New Trials, 228.

When, however, the court below dissolves such an injunction, and in its order states that it is made on the ground that the action cannot be maintained, a question of law is raised, which is reviewable here. Anderson v. Anderson, 112 N. Y. 104, 19 N. E. 427. In that case Judge Peckham said: "Ordinarily no appeal lies to this court from an order dissolving an injunction; but the general term has incorporated in its order a statement that the order of the special term granting the injunction is reversed on the ground that the action cannot be maintained, and hence a question of law is raised, which is reviewable here;" citing Allen v. Meyer, 73 N. Y. 1, and Tolman v. Railroad Co., 92 N. Y. 353. In Allen v. Meyer the court said: "An order refusing or vacating an order granting an attachment is not appealable to this court in any case unless the order shows that it was refused or vacated for want of power, and an order granting an attachment is not appealable unless it presents a question of law or absolute legal right." In the Tolman Case it was said: "This court will review upon appeal the determination of the courts below, even upon a discretionary order, where it appears that the decision was based on the ground of a want of power to grant the application." In McHenry v. Jewett, 90 N. Y. 58, a preliminary injunction was granted at special term, and affirmed at general term; but the order of affirmance was reviewed and reversed by this court upon the ground that the complaint, which was for a permanent injunction, showed no cause of action, and hence a preliminary injunction was unauthorized, and the granting of it an error of law. In Hudson River Tel. Co. v. Watervliet Turnpike & R. Co.. 121 N. Y. 397, 24 N. E. 832, it was held that an order of the general term affirming an order granting a temporary injunction is not reviewable in this court except where it plainly appears on the face of the complaint that the case is one in which, by settled adjudication, the plaintiff, upon the facts stated, is not entitled to final relief, and that in all other cases the granting of the order rests in the sound discretion of the court of original jurisdiction, subject only to review by the general term. In Birge v. Bridge Co., 133 N. Y. 477, 31 N. E. 609, it was held that, where an order of the general term vacating a temporary injunction states that it is based on the ground that the plaintiff has not a legal right to maintain the action, a question of law is presented, which is reviewable in this court. In White v. Inebriates' Home, 141 N. Y. 123, 35 N. E. 1092, the complaint was for a permanent injunction restraining the defendants from doing certain acts, upon the ground that chapter 169 of the Laws of 1877 was unconstitutional. The motion of the plaintiff for a temporary injunction was denied at special term, and the order was affirmed by the general term. The order of affirmance expressly "adjudged

that chapter 169 of the Laws of 1877, and the whole thereof, is valid and is constitutional, and has not been repealed, and confers power and authority" upon the defendants to do the acts in question; "and it is therefore ordered that said order * denying plaintiff's motion for a temporary injunction herein be, and the same is, in all things affirmed." Upon appeal to this court, we said: "There are no controverted facts, and the complaint presented but a question of law, which was in fact determined adversely by the denial of the motion for an injunction. The form of the order below, by adjudging upon that question and disposing of the issues, raises a question of law, which we can review here." As the order reviewed showed upon its face that the injunction was refused, not as a matter of discretion, but because the statute then in question was constitutional, and hence there was no power to grant an injunction, a question of law was presented, that gave this court jurisdiction. In the case now before us the order of the general term is silent as to the ground upon which the injunction was denied. It therefore may have been made by the court in the exercise of its discretion to refuse an injunction until the trial of the action upon the merits, when the facts will be finally determined upon all the evidence, after an opportunity for crossexamination of the witnesses. We think the rule established by the decisions is that an order of the general term affirming or reversing an order granting or denying a temporary injunction cannot be reviewed by this court unless it appears from the record that the element of discretion was excluded, or that the injunction was sustained when in fact there was no power to grant it, or was set aside expressly upon that ground. Such an order of the court below presents a question of law, that we have the right to review; but, unless it clearly appears that the action of the court was not based upon its discretionary power, we cannot review it. The application of this rule to the case in hand compels us to dismiss the appeal. The appeal should be dismissed, with costs. All concur. Appeal dismissed.

PEOPLE ex rel. LARDNER v. CARSON. (Court of Appeals of New York. April 19, 1898.)

ELECTIONS--ESTABLISHMENT OF POLLING PLACES.

It is not beyond the power of the legislature to establish or authorize a polling place for an election district, beyond the boundary line of the district; and the provision of the charter of the city of Lockport (Laws 1865, c. 365, tit. 9, § 18), by which the elections of the inhabitants of the town of Lockport are permitted to be held at such places, within the city, as may be designated, is not in violation of section 1 of article 2 of the constitution, nor are the votes, cast at polling places so designated, void.

Parker, C. J., and Vann and Gray, JJ., dissenting.

O'BRIEN, J. The purpose of this action was to oust the defendant from the office of superintendent of the poor of the county of Niagara, and to install in that office the relator, who is the real plaintiff in the action. The relator claims that he was elected to that office at the general election held in November, 1892, and that the defendant is an intruder. The term of the office has long since expired, and all the effect our decision can have is possibly to lay the foundation of another suit by the relator for the salary. There is no dispute about the facts. Of the votes cast at the election, the defendant received a majority of eight, and it may be assumed that the closeness of the vote is what provoked this litigation. There is no claim that any fraud or wrong was committed by any one. It is not even suggested that any one voted for the defendant that was not entitled to vote, or that any one was prevented from voting for the relator who desired so to vote. The contention of the relator is based upon about as narrow a point as ever before entered into a contest for a public office. The total vote for the office was 13,502, of which the defendant received 6,755, and the relator 6,747. But, of this total vote, 514 votes were cast in the town of Lockport, and the relator's whole case rests upon the proposition that these votes were illegal and void. It is admitted that every one of them was cast by a qualified elector residing in that town, and that 178 of them were cast and counted for the relator. But, since 336 of them were cast and counted for the defendant, that is supposed to be the weak point, and the only weak point, in his title to the office. The only objection made, or that it is possible to make, to these votes, is that they were cast at the regular polling places provided by law for the electors of the town to vote, outside the boundary lines of the town, and within the limits of the city of Lockport. The relator's contention may be stated in a form still more simple. He insists that the legislature has no power to establish or authorize a polling place for an election district beyond the boundary line of the district, though where the boundaries shall be, and when and how changed, is a matter wholly in the power and discretion of the legislature. Of course, the argument applies to a polling place located a few feet from the boundary line of the town or district, and in another town or district, with as much force as if lo

cated a mile outside. The extent of the deviation cannot be important.

Before discussing the legal merits of the relator's contention, it may be well to take a view of what may be called its "moral aspect." The 514 electors of the town of Lockport that the relator insists voted illegally voted at the same place that all the voters of that town have voted for 33 years. They all committed a felony if his contention be correct, to which they have no legal answer, since they knew all the facts, and are presumed to have known the law. The electors of the town have been doing the same thing for over 30 years. Their illegal votes may have determined the presidency in 1884, and they certainly have elected or contributed to the election since 1865 of members of congress, state officers, members of both houses of the legislature, and county officers, some or all of whom must have been usurpers like the defendant. This is the necessary effect and consequence to which the relator's contention plainly points. It is hardly necessary to say that such a position, before it can receive the approval of any court, must be sustained upon legal grounds that are unanswerable, since no one can claim for it the slightest element of equity or justice. But, when we examine the legal grounds upon which the relator's claim is based, the case will be found to be as weak in that respect as it is in all its moral aspects.

We are told that the constitution enacts that the elector must vote "in the election district of which he shall at the time be a resident and not elsewhere." So it does; but what is an election district, and by what power is it made, changed, or abolished? The constitution has left all that to the legislature, and hence an election district is just what the legislature chooses to make it. In this respect it is supreme. It may say that the district shall be small or large, with such territory as it thinks proper, and may even locate the polling places according to its own judgment and discretion. These details are sometimes delegated to local authorities, but it can confer no power upon them that it does not possess itself. If the district is so situated that there is no convenient place within it to hold an election, there is nothing in the constitution that prohibits the legislature from authorizing the local authorities to lo cate the polling place on the other side of the imaginary line which bounds the district, where there may be such a place. In a word, the whole subject of creating election districts, and locating the polling places where the residents of the district may vote, is with the legislature, and it may lawfully delegate this power to local authorities.

Bearing all this in mind, we may recall the facts of this case in order to see how much of substance there is in the relator's con tention. The town of Lockport is, and ever since the year 1824 has been, one of the regu larly organized towns of Niagara county.