Hyperlawhypertext legal database Twenty-Third St. Baptist Church v. Cornwall 3 N.Y.S. 51

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Twenty-Third St. Baptist Church v. Cornwall

3 N.Y.S. 51 Court N.Y. Super. Ct. Decision date 1888-10-25 English

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p. 51
Twenty-Third St. Baptist Church v. Cornwall et al.
(Superior Court of New York City, General Term.
October 25,1888.)

Headnote

1, Subscriptions—Validitt—Limitation op Amount to be Raised.
A subscription made towards a fund for the building of a church, on condition that the fund should amount to a certain sum, is not binding, where some of the subscriptions necessary to make up the sum limited were made by unincorporated societies, such as the Ladies’ Aid Society, through their president, who had no power to bind them.
p. 52
3. New Trial—Motion on Judge’s Minutes—When Made.
Under Code Civil Proc. N. Y. § 999, providing that the judge presiding at a trial by jury may entertain a motion made on his minutes at the same term to set aside the verdict, a motion for a new trial made on the judge’s minutes, in an action tried before a jury, can only be made where a verdict has been rendered.
Appeal from jury term.
Action by the Twenty-Third Street Baptist Church against Jacob B. Cornwall and another, executors of Catharine Weeks, deceased, for a subscription of $5,000, made by defendants’ testatrix, towards a fund of $50,000 for the purpose of building a church. One condition of the subscription was that the subscribers should not be liable unless the sum subscribed amounted to' $50,000. The amount subscribed was about $52,000. The Ladies’ Aid Society and the Young Men’s Mission Society, unincorporated societies, each subscribed $5,000 by their presidents. Plaintiff appeals' from a judgment dismissing the complaint on the merits, and also from an order denying a motion for a new trial. Code Civil Proc. H. Y. § 999, provides that “the judge presiding at a trial by a jury may, in his discretion, entertain a motion, made upon his minutes, at the same term, to set aside the verdict, arid grant a new trial, upon exceptions. ”
Edward 8. Chureh, for appellant. Van Winkle, Candler <& Jay, for respondents.

The principal question in this case, the one arising on the appeal from the judgment, has been passed upon* by the general term of the supreme court, Third department, in Presbyterian Church v. Cooper, 45 Hun, 453 , 10 N. Y. St. Rep. 142 . On the authority of that case, we hold that the subscriptions of the Ladies’ Aid Society, Young Men’s Mission Society, and of the Youths’ Mission Society were invalid, and that the aggregate of subscriptions was less than $50,000. The motion for a new trial on the judge’s minutes was improperly made. Section 999 of the Code of Civil Procedure authorizes the judge presiding at a trial by a jury to entertain a motion for a new trial made upon his minutes, only in a case where there has been a verdict. Dusenbury v. Dusenbury, 1 Civil Proc. R. 292, and cases there cited. The judgment and order are affirmed, with costs.

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