Alexander v. Cauldwell, 83 N. Y., 480; Hoyt v. Thompson, 19 id., 207-222; Relfe v. Rundle, 103 U. S., 222-226; Davis v. Old Colony R. R. Co., 131 Mass., 258-260; Leonard v. The American Insurance Co., 97 Ind., 299.

Savings banks are designed to encourage economy and frugality among persons of small means, and are organized with restrictions and provisions intended to secure depositors against loss. Speculative contracts entered into for the sale or purchase of stock by a savings bank at the stock board or elsewhere, subject to the hazard and contingency of gain or loss, are ultra vires and a perversion of the powers conferred by its charter. People v. The Mechanics' & Traders' Savings Institution, 92 N.Y., 7-9; Sistare v. Best, 88 id., 527-531.

Contracts of corporations are ultra vires when they involve adventures or undertakings outside and not within the scope or power given by their charters. The acts under which they are organized were framed in view of the rights of the public and the interests of the stockholders. As artificial creations they possess only the powers with which they were endowed. An act may be malum in se or malum prohibitum, or an act may not be immoral · or prohibited by any statute, and still it may be in excess of the powers vested in the officers of a corporation, unauthorized and prejudicial to the stockholders. In either case the plea of ultra vires should prevail, unless it would defeat justice or accomplish a legal wrong. Huntington v. Savings Bank, 96 U. S., 388; Thomas v. Railroad Co., 101 id., 71; The Nassau Bank v. Jones, 95 N. Y., 115; Leslie v. Lorillard, 110 id., 519; 18 N. Y. State Rep., 520.

As we have seen, the defendant was chartered for the purpose of receiving on deposit or in trust such sums of money as may from time to time be offered by tradesmen, merchants, clerks, laborers, servants and others. It was authorized to loan these moneys according to the constitution and laws of the state, and to discount in accordance with bank usages, taking such security therefor, either real or personal, as the directors may deem sufficient. In addition thereto the defendant was given power to borrow money, buy and sell exchange, bullion, bank notes, government stock and other securities. The authority here given to buy and sell exchange, bullion, bank notes, government stocks and other securities does not embrace or include speculative contracts in cotton futures, any more than it does hay, oats, provisions or dry goods. The exchange, bullion, bank notes, securities, etc., authorized are those of fixed value, current in the market, and not subject to the control of speculators. Whilst the buying and selling of cotton to be delivered in the future may not ordinarily be immoral, or prohibited by any statute, it is not included in the powers given to the defendant by its charter. The transaction in question was prejudicial to its stockholders, and tended to endanger and destroy the safeguards provided for the depositors. The stockholders and depositors had the right to have their funds invested in accordance with the provisions of the charN. Y. STATE REP., VOL. XXXIII. 43

ter and the constitution and laws of the state, and in so far as this right was violated by the transaction in question, it was a misappropriation of the funds and immoral.

It is contended that the defense of ultra vires is not available in this case for the reason that the contract had been executed on the part of the plaintiffs, and that the defendant is estopped from setting up the defense. In the case of The Whitney Arms Co. v. Barlow, 63 N. Y., 62, the plaintiff was a corporation organized for the purpose of manufacturing every variety of firearms and other implements of war, and all kinds of machinery adapted to the construction thereof. It entered into a contract with the American Seal Lock Company to manufacture and deliver 10,000 locks. The locks having been delivered, it was held that the contract was fully executed, and that the plea of ultra vires would not prevail as a defense to an action brought to recover the contract price. We do not question the rule thus invoked. It has been repeatedly declared in other cases, as for instance, in Parish v. Wheeler, 22 N. Y., 494, in which it was held that a railroad company having purchased and received a steamboat could be compelled to pay for it although the power to purchase such boat was not included in its charter. But this doctrine has no application to executory contracts which are sought to be made the foundation of an action, or to contracts that are prohibited as against public policy or immoral. The Nassau Bank v. Jones, supra; Railway Companies v. Keokuk Bridge Co., 131 U. S., 371-389.

In the case at bar the transaction, as we have seen, was not only immoral and in violation of the rights of the stockholders and depositors, but the defendant had received nothing by virtue of it. The cotton had been purchased by the plaintiffs in their own name, they taking title thereto and holding it upon the defendant's account. It was purchased under the rules of the Cotton Exchange of the city of New York, in which the members doing business therein with other members act as principals and are liable as such. The most that can be claimed is that they held the cotton or the contracts therefor subject to the call or order of the defendant. There had been no delivery of any cotton or property of any kind or transfer of any title to such property to the defendant. If the steamboat had never been delivered to the railroad company so as to transfer the title thereto, or if the 10,000 locks had never been delivered to the American Seal Lock Company, very different questions would have been presented in the cases to which we have called attention. We consequently are of the opinion that under the circumstances of this case the defense of ultra vires is still available to the defendant.

The claim is made on behalf of the appellants that the defendant in making the orders acted as an agent for an undisclosed principal, and is therefore liable as such. If the defendant had no power to engage in the business as principal we do not understand what right it had to do so as an agent, but conceding that it was an agent and that the orders were made for and on behalf of Clopton then this action should have been brought against Clop

ton instead of the defendant. But it is claimed that the defendant neglected to disclose its principal at the time of making the orders and for that reason it is liable, but if it neglected to disclose its principal, so far as this action with the plaintiffs is concerned it must be regarded as principal and liable as such, and if a principal then the question of ultra vires arises. The plaintiffs cannot sustain their action upon the two theories, for they lead in different directions. They cannot proceed upon the theory that the defendant was an agent for the purpose of avoiding the question of ultra vires, and then upon the theory that the defendant was a principal for the purpose of establishing a right to recover. Undoubtedly a person may in fact be an agent and still bind himself as a principal, but if he is proceeded against as a principal he is entitled to all of the rights and privileges that the law gives to a person occupying the position of principal.

We consequently are of the opinion that the judgment should be affirmed, with costs.

All concur.

DAVID H. FLACK et al., App'lts, v. THE VILLAGE OF GREEN ISLAND, Resp't.'

(Court of Appeals, Second Division, Filed October 7, 1890.)

1. HIGHWAYS-STREETS-DEDICATION OF INTENT.

Where the intent to dedicate a highway to public use is not evidenced by acts, the mere intent of one or of both the parties signifies nothing. The intent of the owner to give must be followed by an abandonment of his exclusive enjoyment of the place and the intent to accept must be followed by the use and appropriation of it.

2. APPEAL-EXCEPTIONS.

To authorize the consideration of questions of fact on appeal to this court, the case must show that the exceptions taken by the appellant were that the findings of the trial court were without any evidence to support them, and exceptions to the refusals to find requests of the appellant are only available in cases where the evidence in support of the requested findings is uncontradicted.

3. SAME.

The findings of fact of the court below will not be reviewed except where the general term reversed the judgment in the court below upon a question of fact; nor will this court reverse a judgment unless it appears from the case that there is no evidence to support an essential finding, properly excepted to, or a refusal, duly excepted to, to find an essential fact from uncontradicted evidence.

APPEAL from a judgment of the general term of the third department, affirming a judgment entered npon the report of a referee dismissing the complaint upon the merits, with costs.

Barnwell Rhett Heyward, for app'lts; Henry A. King, for resp't.

POTTER, J.-This is an action in equity asking to have the defendant, a municipal corporation, perpetually enjoined from remov. ing or interfering with a store house of the plaintiff, Flack, located, as alleged in the complaint, upon land of the plaintiff, the D. & H. C. Co., and near its railroad, and leased to plaintiff 'Affirming 40 Hun, 637, mem.

Flack, and declaring the title thereto to be in the said D. & H. C. Co., subject to no easement for highway or other purposes.

The answer alleged that plaintiff Flack erected the store house upon the lands forming a part of Paine and Lafayette streets, in the village of Green Island, and covering 1700 square feet of the former and 930 square feet of and entirely crossing the latter.

The issue thus presented was whether the land occupied by the store house or a part of it was a street or public highway.

Questions of this character have frequently arisen and the principles upon which they have been decided are quite familiar to the legal profession.

In a large proportion of such controversies, the principal question to be decided has been, as in this case, whether the place in dispute has been dedicated by the owner to the use of public travel, and whether the same has been accepted for such purpose. Such an issue necessarily involves the intent and acts of the acceptor. The evidence of such intent may rest in writing, or oral declarations, or in the acts of the parties concerned. Where such intents are not evidenced by acts, the mere intent of one or even of both the parties signifies nothing The intent of the respective parties must be followed by appropriate and characteristic acts upon the part of each party. The intent of the owner to give must be followed by an abandonment of his exclusive enjoyment of the thing, and the intent to accept the thing must be followed by the use and appropriation of it.

Dedication is essentially of the nature of a gift. There can be no gift without a surrender of the subject by the one and acceptance of it by the other.

These views are sanctioned and illustrated by numerous reportIt will serve the purposes of the case under consideration to refer to but few of them.

ed cases.

Upon the point of an intent to dedicate and the specific evidence to support such intent reference is made to the case (which in some respects is a leading case upon this subject) of Cook v. Harris, 61 N. Y., 448-454. "The owner's acts and declarations should be such as to manifest an intention to abandon or devote his property to the public use." "No particular length of time is essential to make a dedication valid and irrevocable." "The dedication and acceptance may both concur on a single day. All that i3 needed in any case is room for estoppel to work." "The intention of the owner to dedicate is the essential thing and this is to be found in facts and circumstances of each particular case. Pomfrey v. Saratoga Spa., 104 N. Y., 459; 5 N. Y. State Rep., "Where a plot is made and recorded the requisite intention is generally indisputable." Dillon's Municipal Corporations, § 636. "A sale of lots with reference to such plot or describing lots as bounded by streets, will amount to an immediate and irrevocable dedication of the latter binding upon both the vendor and vendee." Supra, & 640.

802.

The case of Bissell v. The N. Y. C. R. Co., 23 N. Y., 61, is also a leading case upon the subject of dedication. In that case the grantor in a conveyance referred to a street, and it was held that as

to his grantees he dedicated it as a street, that as to whether the public ever accepted it or not and regarding the public generally it did not become a street or highway until there has been an acceptance either by formal act of public authority or by common user under such circumstances as to show an intention to accept it. The same doctrine was held in Story v. The N. Y. Elevated R. Co., 90 N. Y., 122. And the same doctrine is further illustrated in Newman v. Nellis, 97 N. Y., 285.

To the same effect is Hunter v. The Trustees of Sandy Hill, 6 Hill, 407, where it was held that lapse of time is not an essential ingredient, but the dedication may be established by acts on the part of the owner and the public, unequivocal in their character, though occurring on a single day. "Long continued and unin terrupted use of land by the public, however, furnishes strong evidence of dedication."

Upon the point of acceptance and the kind and sufficiency of the evidence to prove acceptance, reference may be had to the following cases in addition to the cases above cited. In Holdane v. Trustees of Cold Spring, 21 N. Y., 474-479, it is said, "to complete the dedication of a highway if there has been no formal act of acceptance by public authority, the acceptance may be made by common user as a highway of the land dedicated."

Dillon says in § 642, 3rd ed., of his work upon Municipal Corporations, "Acceptance may be express and appear of record, or it may be implied from repairs made and ordered or knowingly paid for by the authority which has the legal power to adopt the street or highway, or from long user by the public." People v. Lochfelm, 102 N. Y., 1; Porter v. Village of Attica, 33 Hun, 605; Pomfrey v. Village of Saratoga Springs, supra.

It is plain from the cases cited and many more that might be cited, as well as from the essential nature of the issue itself, that is, whether there has been a dedication and acceptance of the land for a public highway, is a question of fact. People v. Loelfelm, supra.

The defendant introduced evidence of various kinds and force, and recognized by the reported cases and which may be referred to in a summary manner, to sustain the contention that the place was a public highway. The defendant gave evidence tending to prove that the Rensselaer & Saratoga R. Co., the lessor of the D. & IL C. Co., one of the plaintiffs in this action, had given numerous conveyances from 1846 to 1871 which recognized and adopted the map made by S. A. Beers in 1838 and 1845, which divided this plat of fifteen acres into streets and lots and numbered the lots, and which grants or conveyances referred to the two streets in question as the boundaries of the lots being conveyed. The same railroad company, the Rensselaer & Saratoga, was also shown to have received conveyances of lots out of this tract of fifteen acres, referring to the number of the lots as made upon Beers' map and to the streets as laid down upon that map. The defendant also gave evidence tending to show user for many years of these streets by the public and acquiescence by the plaintiff, the D. & H. C. Co., and its predecessor, the Rensselaer & Saratoga R. Co.