In the Matter of the Bowery Bank.

course, still more if with the express intent of insuring equality, is a proper and legal act.

It may be, that the selection of one of its own officers as receiver was injudicious; but it certainly was not unlawful. The act for the voluntary dissolution of corporations, (2 R. S. 467,) expressly provides, that "any of the directors, trustees or other officers, or any of the stockholders, may be appointed receivers." We have the sanction, therefore, of the legislature, for the principle of such a selection. Any creditor, neverthe less, upon good cause shown, may object either before or after the appointment, and may designate a more suitable person of his own nomination, to take the place of the nominee of the bank. Mr. Nicolay, at present, makes no such application. It is understood, however, that another creditor has done so, and that one of my colleagues has already made the desired change, by substituting Mr. Stewart for Mr. Bradford.

It is suggested, that the new constitution of the state, and the act of 1849, passed to give effect to its requirements, have superceded the previous legislation on the subject.

The constitution declares, that the stockholders of banks of issue, shall be individually responsible to the amount of their respective shares; and the act of 1849, declares, that the liability so created, shall be enforced as therein provided, "and in no other manner." That "manner," is either by issuing an execution and showing that the property of the bank is of such a character that an execution although issued cannot be satisfied out of it, or by waiting ten days after demand and refusal, and then applying for a distribution of the assets by a receiver, and an apportionment of the deficiency among the stockholders on the report of a referee. Mr. Cummings, it is said, complied with neither of these conditions-he neither obtained an execution nor waited the ten days. A ready answer to this objection is found in the well settled principle that a party in whose favor conditions are prescribed, may waive their enforcement. The bank did so; and the order on that point, no fraud being suggested, is res judicata. It determined the institution to be insolvent. Mr. Nicolay, it is true, was not a

Pratt and others agt. Ramsdell and others.

party to the proceeding; but the statute did not require that he should be. "Any creditor having a demand exceeding one hundred dollars," was authorized to make the application, and to obtain the order. No notice was required, except to the bank. If the statute in this respect be-as it clearly is-defective, the court has no power to supply the omission. For want of notice to all the creditors, an improper person may sometimes, no doubt, be appointed receiver. The evil, however, can only be temporary. Any person having an interest may immediately apply for a change and for an intermediate injunction on his acts--and such motions may be repeated as often as new occasions for them may arise. Mr. Nicolay, therefore, is not prejudiced. And if it be true, as he alleges, that the bank is solvent, so much the better will it be for his ultimate payment.

It may nevertheless, under the circumstances, if he desires it, be proper to direct a reference to inquire into the matter of the appointment of the cashier, as distinguished from other persons, (that being the act rather of the parties, than of the court,) and of the subsequent substitution pending this proceeding, of the secretary of the Trust Company in his stead.

Should the petitioner's counsel consider a special order necessary, he will prepare a draft and submit it (on notice) for settlement.

SUPREME COURT.

MARIA F. PRATT and others agt. ORRIN P. RAMSDELL and others.

In an action for the foreclosure of a mortgage, (or any equity cases,) where tender is made before judgment, if the parties do not voluntarity adjust the costs, either party may apply to the court for that purpose.

Pratt and others agt. Ramsdell and others.

If costs are allowed to the plaintiff without entry of judgment, the items and amount, are to be governed by § 307.

If the court shall be of opinion that the circumstances of the case demand it, the plaintiff may be permitted to take judgment notwithstanding the tender, and thus become entitled to the additional allowance under § 308; or, if the equities of the case demand it, the court may refuse costs to the plaintiff; or even award them to the defendant.

This course preserves the discretion of the court as to the allowance of costs in equity cases, in its full vigor, leaving it to be exercised consistently with the equities of each case. (The case of Pratt agt. Conkey, 15 How. 27, held to apply exclusively to actions at law.)

APPLICATION to determine the right of plaintiff to the additional allowance under section 308 of the Code, as amended by the act of April 13, 1857, in an action to foreclose a mortgage, where defendants paid the amount due with the costs specified in section 307, before judgment; the payment having been made and received under stipulation of the parties, that it should not affect the plaintiff's right to the allowance, if the court should be of opinion he was entitled to it.

N. K. HOPKINS, for plaintiffs.

SHERMAN S. ROGERS, for defendants.

DAVIS, Justice. In an action for the foreclosure of a mortgage, costs are not allowable of course, under section 304 of the Code, but are wholly within the discretion of the court. (Code, $$ 304, 306; Gallagher agt. Egham, 2 Sand. S. C. R. 742.)

In cases of this kind, where the defendant is ready, and offers to pay, or brings into court the amount due on the mortgage, the parties are at liberty to apply to the court for its direction as to the question of costs; and the court under section 306 has a discretion to allow them or not, as may be equitable and just. If the court on such application do allow costs, the amount and the items are distinctly regulated by section 307, unless there be a "recovery of judgment," bringing the case as to an additional allowance within section 308. It was held in The New-York Fire and Marine Ins. Co. agt.

Pratt and others agt. Ramsdell and others.

Burrell, (9 How. P. R. 398,) that the statute (2 R. S. 553, § 20,) allowing a defendant to tender to the plaintiff or his attorney an amount sufficient to satisfy the demand with costs to the time of the tender, and providing that if it shall appear on the trial that the amount so tendered was sufficient to pay the demand and costs, the plaintiff should not be entitled to costs subsequent to the tender, is confined to actions at law, and does not affect actions for the foreclosure of mortgages. I think this conclusion a sound one; especially since in equity suits the costs being discretionary with the court, a tender of them cannot, in many cases, be made with certainty or safety to the rights of the parties.

A different rule prevails in actions coming within the provisions of section 304 of the Code. In such cases, the costs are fixed and certain; and the rights of the parties on settlement before judgment, are declared by section 322. The ruling of MARVIN, J., in Pratt agt. Conkey, (15 How. 27,) was in such an action, and is undoubtedly correct.

From these views, it follows that in an action for the foreclosure of a mortgage, where tender is made before judg ment, if the parties do not voluntarily adjust the costs, either party may apply to the court for that purpose. If costs are allowed to the plaintiff without entry of judgment, the items and amount are to be governed by section 307. If the court shall be of opinion that the circumstances of the case demand it, the plaintiff may be permitted to take judgment notwithstanding the tender, and thus become entitled to the additional allowance under section 308; or if the equities of the case demand it, the court may refuse costs to the plaintiff; or even award them to the defendant.

This course preserves the discretion of the court as to the allowance of costs in equity cases, in its full vigor, leaving it to be exercised consistently with the equities of each case. Of course, in ordinary cases, the court, by refusing to permit judgment to be entered, would allow no more costs than the amount prescribed by section 307; and where those items had been tendered, the plaintiff would be put to show a satis

Cross agt. Sackett and others.

factory excuse for refusing them, or be himself charged with the costs of the application; and it is so uniformly the prac tice of the court to allow costs in mortgage cases, that the defendant, in all ordinary cases, should tender those items to avoid the costs of the motion which the court would otherwise be likely to impose upon him. In a case of extraordinary labor or expense, the court by permitting judgment to be entered for the amount tendered, could protect the plaintiff, so far at least as the additional allowance is concerned, from the effect of a tender made upon the eve of a judgment, or after the labor and expense of contesting an unmeritori ous defence.

There are no facts disclosed in the case before me, to call for the special interference of the court; and as it appears that the costs allowed by section 307, have been paid, the motion must be denied.

NOTE. Decided at Erie special term. Affirmed on appeal November general term, 1857, DAVIS, P. J., MARVIN and GREEN, Justices, and the opinion of justice at special term adopted.

SUPERIOR COURT.

JAMES M. CROSS, respondent agt. AMOS M. SACKETT, MOSES L. HOLMES, JOHN D. MAXWELL, HENRY W. BELCHER, FRANKLIN OSGOOD, SAMUEL SMITH, ISAAC H. SMITH and NATHANIEL H. WOLFE, appellants.

There is no wrong or fraud, which directors of a joint stock company, incorporated or otherwise, can commit, which cannot be redressed by appropriate and adequate remedies.

The first mode is when the company in its corporate name, seeks to set aside the fraud, to reclaim abstracted property, or prevent a corporate loss.

The next mode is, when shareholders bring an action for the same object, unitedly or in the form which the court of chancery permits, of a bill by one or more on behalf of themselves and all others having a common interest. This right exists under various circumstances. It clearly exists, when the directors or agents