APPEAL by the defendant from a judgment in favor of the plaintiff, entered in Erie county in February, 1890, for $725.66, damages and costs.

John G. Milburn, for app'lt; Frederick R. March, for resp't.

CORLETT, J.-The action was originally commenced against the Buffalo, New York & Philadelphia Railroad Company, in August, 1884, and issue was joined. On the 20th of May, 1885, the defendant was appointed receiver of the corporation, entered upon the discharge of his duties and took possession of the property. In September, 1887, an order was made at special term, substituting the defendant in place of the corporation, and allowing the action to proceed against the receiver with the same effect as if originally commenced against him. This order was made on the part of the plaintiff, but was not opposed by the defendant, who appeared by counsel on the motion.

The amended complaint alleges in substance that in May, 1884, the corporation, by its agents, wrongfully tore down and carried away his buildings, inflicting damage to the amount of $568. It also alleges an order substituting the defendant. The answer was a denial. The cause was tried before Justice Daniels and a jury, in November, 1889, and resulted in a verdict for the plaintiff. Judgment was entered on the verdict, and the defendant appealed to this court.

It appeared on the trial that the railroad company removed and destroyed the buildings occupied by the plaintiff substantially as alleged in the complaint. It was also proved that their value was the sum alleged. At the close of the evidence the defendant moved for a nonsuit, first, upon the ground that the plaintiff had not proved facts sufficient to constitute a cause of action; and, second, that the action could not be maintained against the defendant as receiver, the tort having been committed prior to his appointment. The court denied the motion and the defendant excepted.

The defendant put in evidence a judgment in ejectment in favor of the defendant for the land upon which the buildings stood, and the issuing of an execution on the judgment. Also gave evidence tending to show that the destruction of the buildings was necessary to enable the company to construct its tracks.

The motion for a nonsuit was renewed and denied and exception taken, and the jury found the sum stated for the plaintiff. The trial court held that the action could not be maintained as one upon contract, but was in tort. The court also remarked, "that as to whether the receiver may ultimately be held liable for trespass in removing this property is a point that it is not advisable at this time to decide." The court then stated that the case must go to the jury substantially on the value of the buildings, excluding all interest in the land. To this ruling the counsel for the defendant excepted.

It was proper to substitute the receiver as defendant after his appointment. High on Receivers, §§ 213, 260, 315 and 316.

In Combs v. Smith, 78 Mo., 32, decided in 1883, it was held

that an action for tort against a receiver of a corporation could be maintained, although committed by the corporation before his appointment. The trial justice in stating that it was not necessary to decide the ultimate liability of the receiver in trespass, simply had reference to the manner of enforcing the judgment, and not to the propriety of obtaining it. Though the cause of action. alleged in the complaint sounded in tort, the judgment simply establishes a liability and its extent. Neither the receiver or the corporation can be prejudiced by thus adjudging the plaintiff's rights. The mode of collection is not involved.

No good reason is perceived why the action should not proceed to judgment in this manner. No question was raised on the trial by the learned counsel for the defendant as to the plaintiff's being entitled to the buildings or as to their value.

The cause was properly disposed of at the circuit, and the judgment must be affirmed.

MACOMBER, J., concurs; DWIGHT, P. J., not voting.

LOUISA A. SPRINGER, Resp't, v. THE ANGLO-NEVADA ASSURANCE CORPORATION, App'lt.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) 1. INSURANCE (FIRE)-CANCELLATION OF RISK.

Plaintiff made an arrangement with an insurance agent to insure her stable and continue the insurance at a certain sum. One of the policies provided that it could be terminated on five days' notice. Such notice was given, and on the same day the agent made an arrangement with defendant to take the risk, subject to the right of rejection the following day on examination, and a policy was written but not delivered. The premises were consumed by fire the same night. Held, that the provision as to notice of cancellation was for the benefit of the insured, and she had the right to accept the cancellation at the moment of service of notice. 2. SAME-RECOVERY MAY BE HAD ALTHOUGH POLICY IS NOT ISSUED.

An agreement to continue an insurance is valid, and a recovery may be had before the issuance of the policy or the payment of premium.

APPEAL from an order denying a motion for a new trial entered in Erie county in May, 1890; also from the judgment entered on the verdict.

Truman C. White, for app'lt; Arthur W. Hickman, for resp't.

CORLETT J.-The plaintiff was the owner of a livery stable in Porter avenue, in the city of Buffalo, including its contents. In the latter part of the year 1887, or the commencement of 1888, her husband was her agent, and made an arrangement with Joseph Berlin to insure the stable and contents and continue it for the sum of $9,000. In pursuance of this arrangement, the insurance firm of C. B. Armstrong & Co. effected insurance in various companies for that amount. One of the policies, for a thousand dollars was in the Merchants' Insurance Company of Newark, N. J. There was a provision in that policy to the effect that it could be terminated on five days' notice. Such a notice was served about the 10th day of July, 1888, by North & Vedder, the agents for the Merchants, upon C. B. Armstrong & Co. The latter com

pany immediately took steps to insure in another company and keep the amount up to $9,000, and finally made an arrangement with the defendant, the substance of which was that it would take the risk. This agreement was consummated about six o'clock on the evening of the 10th of July, 1888, reserving the right of rejection if required by examination in the morning. A policy was written which on its face took effect at the time of the agreement, but was not delivered. In the course of the night the stable and its contents were consumed by fire.

A trial was had at the Erie circuit before Justice Daniels and a jury on the 13th day of February, 1890, which resulted in a verdict for the plaintiff. The trial resolved itself into two contentions; one was as to whether there was a contract made between Mr. Woodworth and the representative of C. B. Armstrong & Co., on the evening of July 10th, to take the risk upon the plaintiff's property until the next day, and the other, whether that took the place of the Merchants' policy. Both of these questions were submitted to the jury by the trial justice, which found for the plaintiff.

The plaintiff's husband was a witness on the trial. He testified to the original contract of insurance for $9,000 and its continuance. As policies for that amount were effected and continued, or sought to be, it may be assumed that the contract was substantially as testified to by him. On this point there seems to be no controversy, as the evidence tended to show that the defendant made the contract alleged. But it is seriously urged on the part of the learned counsel for the appellant that the insurance in the Merchants remained in full force until five days after the service of notice, and that, therefore, a re-insurance in the company of the defendant could not be legally effected until the expiration of that time. This would be so if by contract between the parties a cancellation could not be effected until five days after the service of notice. But it is manifest that this was for the benefit of the insured. If the company could terminate the policy at its option, the insured might be without protection by way of re-insurance. But the insured unquestionably had the right to accept the cancellation the moment of service of notice. The evidence tended to show that such was the case here; for her agents at once sought to effect a re-insurance, which it is claimed they accomplished. This amounted to a waiver on the part of the insured of the full time, and the defendant is in no position to urge the want of expiration of the time of notice, if it made the contract alleged. This question, therefore, was properly submitted to the jury by the trial justice.

It is a familiar rule that an agreement to continue an insurance is valid, and that a recovery may be had before the issuance of the policy or the payment of premium. Post & Dowding v. Etna Ins. Co., 43 Barb., 351; Rockwell v. Hartford Fire Ins. Co., 4 Abb. Pr., 179; Lipman v. The Niagara Fire Ins. Co., 16 N. Y. State Rep., 231.

At the close of the evidence the trial justice fully charged the jury upon all the questions litigated upon the trial. The only exception taken by the defendant to the charge was as follows:

"The defendant's counsel excepted to that portion of the charge in which it was charged that Armstrong & Co. would have the right to make, the insurance with the defendant if the jury find the Merchants insurance was cancelled, provided Berlin was authorized to obtain and maintain insurance on the plaintiff's property to the amount of $9,000."

It will be noticed that there is no exception based upon the theory that there was not evidence warranting the charge of the trial justice, but the exception proceeded upon the assumption that, as matter of law, the charge in that respect was erroneous without regard to the evidence. It is very clear that in this. aspect the exception has no foundation to rest upon.

The trial justice properly disposed of the requests to charge. It is not necessary to examine each in detail.

The learned counsel for the appellant argues that there could be no recovery under the pleadings because no policy was actually issued, and that proof of a contract to insure was not equivalent to a policy. The theory of the cases is that a contract to insure is equivalent to the actual issuing of the policy; but no objection was made to the agreement on the trial by the defendant, nor was the defect of the pleadings made the basis of the motion for a non-suit. If a specific objection had been taken, or the attention of the court called to the point, the defect, if any, might have been remedied by amendment; but no such point as is now urged having been taken on the trial, it cannot be successfully urged on appeal.

There seem to have been no substantial errors on the trial requiring a reversal, and the judgment must be affirmed.

DWIGHT, P. J., and MACOMBER, J., concur.

JAMES H. KING et al., Pl'ffs, v. THE UNION IRON COMPANY OF BUFFALO et al., Def'ts.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) 1. CORPORATIONS-TRANSFER IN CONTEMPLATION OF INSOLVENCY.

While it is competent for an insolvent corporation to permit creditors to take hostile proceedings by which a preference may be obtained through vigilance, and may even suffer default in an action upon a just claim, yet when the creditor, who is also a stockholder and director of the corporation, undertakes thus to obtain a preference by an action at law, with the co-operation of his associates in the board of trustees, the case is directly within the condemnation of the statute, and amounts to an unlawful preference by way of assignment and transfer of property in contemplation of insolvency.

2. SAME.

Where, however, there was no intent to defraud creditors, except as derived from the statute, and the judgment creditor, who purchased the property on the execution sale, has since paid off prior liens theron, no judgment by way of punishment should be given, but the parties should be restored, as far as possible, to the condition they were in at the time the judgment was obtained.

APPEAL by the plaintiffs from so much of the judgment, entered in Erie county on the 8th day of February, 1890, upon the N. Y. STATE REP., VOL. XXXIII.

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decision of the court at special term, by which the defendant Wilbur was subrogated to the rights of the holders of the bonds of the defendant, The Union Iron Company of Buffalo, in the sum of $280,000, secured by a first mortgage upon the company's property, and subordinating the plaintiffs' judgment to such lien. Also an appeal by the defendants from so much of said judgment as declared that a judgment procured against the said Union Iron Company of Buffalo, by the defendant Wilbur, on the 8th day of April, 1881, for the sum of $380,864.97 damages and costs, and the sale under such judgment, and the deed subsequently delivered in pursuance of such sale, were void as against the plaintiffs. Charles B. Wheeler, for pl'ffs; George J. Sicard, for dèf'ts.

MACOMBER, J.-The defendant, The Union Iron Company of Buffalo, which was organized in 1872, carried on business at the city of Buffalo until the year 1880. The plaintiffs brought an action upon contract against that corporation on the 19th day of October, 1881, which resulted in a judgment in their favor in the sum of $20,000 damages, besides costs, and the same was entered on the 7th day of April, 1883.

The defendant, Elisha P. Wilbur, from the organization of the company, was a trustee thereof, and one Ario Pardee was likewise a trustee and the president of the corporation.

Prior to the month of March, 1881, this corporation had become indebted in a large sum of money to the firm of which Ario Pardee was a member, known as Ario Pardee & Company, and to Asa Packer of the state of Pennsylvania. The indebtedness to Ario Pardee & Company was substantially an indebtedness to Ario Pardee himself, as his only copartner in the concern had died before any question pertaining to this litigation arose. Asa Packer died in the year 1879, being a large creditor of the company. The defendant Wilbur was one of the executors and trustees under the will of Asa Packer.

The whole indebtedness to the estate of Packer and to Pardee amounted to upwards of $380,000, being for moneys actually advanced to and used for the company in carrying on its business, and was represented by commercial paper held respectively by these crediters.

By an arrangement with the creditors, the defendant, Wilbur, being a stockholder and director of the Iron Company, was made a trustee for the collection of this indebtedness, the particulars of which arrangement it is not necessary to mention in this connection. An action brought by him against that company resulted in a recovery by him of a judgment of $380,864.97. An execution was issued upon such judgment, and the personal property of the corporation, which was first sold under execution, netted only the sum of $22,266.23. Subsequently, the real estate mentioned in the complaint, being the whole of the remaining property of the iron company, was sold upon the same execution, and was bid in by the defendant Wilbur, for $2,000. These proceedings culminated in a deed executed by the sheriff in due form to the defendant Wilbur, on the 24th day of April, 1884. The purchase so