12 312 153a 687 FIRST DEPARTMENT, DECEMBER TERM, 1896. [Vol. 12. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. RUMSEY, PATTERSON, O'BRIEN and INGRAHAM, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event. WILLIAM E. WAMSLEY, Appellant, v. II. L. HORTON & CO. (LIMITED), II. L. HORTON, Respondent. Dissolution of a foreign corporation under the laws of the foreign country — when an action pending against it cannot be continued against its trustees. An action brought against a foreign corporation which is subsequently dissolved, and a liquidator appointed under the laws of the foreign State, who thereby becomes vested with all the powers of the existing trustees, cannot be continued against such trustees, under section 757 of the Code of Civil Procedure, as being the "representative or successor in interest of the corporation," where it is not alleged that there is in the State of New York, or that they have in their possession, any property of the corporation. Semble, that the provisions of the General Corporation Law (Chap. 687, Laws of 1892) do not apply to foreign corporations. APPEAL by the plaintiff, William E. Wamsley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of July, 1896, denying the plaintiff's motion to amend the summons and pleadings and to continue the action in the names of Henry L. Horton, William R. Balch and Francis A. Vauillon, as trustees of the defendant, H. L. Horton & Co., Limited. Alexander S. Bacon, for the appellant. John R. Dos Passos, for the respondent, II. L. Horton. INGRAHAM, J.: Assuming that the court obtained jurisdiction over the defendant corporation, and that the cause of action survived the dissolution of the corporation, the plaintiff was entitled to have the action continued against the "representative or successor in interest" of the App. Div.] FIRST DEPARTMENT, DECEMBER TERM, 1896. defendant, under the provisions of section 757 of the Code of Civil Procedure, but the court could only continue the action against the representatives of the corporation who in some way occupied that relation to it, or the successors in interest of the corporation who became vested with all interest in the property of the corporation, or in the property that was the subject-matter of the action. It appeared that there is no property of the corporation within this State; that no receiver has been appointed of the corporation here, but that upon the dissolution of the corporation, one J. Earle Hodges, of London, England, was duly and regularly appointed by the said company its liquidator according to the law of Great Britain under which the corporation was incorporated, and that thereupon such liquidator became vested with all the powers of the then trustees of the company. The said liquidator proceeded to take possession of the property of the corporation and to apply the same to the payment of its debts. It is quite apparent that the directors or trustees of the corporation were not the "representative or successor in interest" of the corporation. The property of the corporation vested in the liquidator appointed in England, and he, and not the trustees, was the representative of the corporation and succeeded to its interest in its property. We are referred to no statute of this State or of England which makes the directors or trustees of this corporation liable for its debts, or authorizes a suit to be brought against them by a creditor of the corporation. In fact, the directors or trustees ceased to be such upon its dissolution, for there was then no corporation of which they could be directors or trustees. alleged that these trustees have in their possession any property belonging to the corporation. These trustees, therefore, do not come within the provision of the Code allowing an action brought against the corporation to be continued as against its representative or successor in interest, and it is clear that if such action were so continued it could be of no possible benefit to the plaintiff, as no judgment against the trustees as representing the corporation would be binding upon the official liquidator in England. The provisions of the General Corporation Law (Chap. 687, Laws of 1892) do not apply to foreign corporations; but if they did, secAPP. DIV.-VOL. XII. 40 FIRST DEPARTMENT, DECEMBER TERM, 1896. [Vol. 12. tion 30, relied on by the appellant, would not apply; for here it expressly appears that another person has been appointed as liquidator of the corporation, in whom has vested all the property of the corporation for the purpose of distributing its property; and the liability of such trustees is by this section of the General Corporation Law expressly limited to "the extent of the corporation's property and effects that shall come into their hands." It is not alleged that any property of this corporation has come into their hands. We think, therefore, the court below was right in denying the motion on the ground that the trustees are not the representatives or successors in interest of the corporation, and are not liable for the debts of the corporation. The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements. VAN BRUNT, P. J., WILLIAMS, PATTERSON and O'BRIEN, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. MOSES H. CONE, Respondent, v. THE EMPIRE PLAID MILLS, Appellant. Corporation-authority of a general manager to sell its product — not affected by a by-law requiring the contract to be signed by the president authority to sign a written contract a question for the jury. The secretary and treasurer and general manager of a corporation, who had the charge of its mills, made its sales and purchases, drew its checks and appeared to the public as its sole representative, executed a written contract for the sale of certain of the products of the corporation, and received part of the proceeds, which were used for the purposes of the corporation. Held, that the vendee was entitled to recover damages against the corporation for a breach of such contract, notwithstanding the fact that a by-law of the corporation, which provided that the president should sign all contracts by which a greater liability than $200 was assumed by the corporation, was not complied with; That in such a case a writing was not necessary to bind the corporation, but that, if it was, the authority of the treasurer to execute it was, under the circumstances, a question for the jury. App. Div.] FIRST DEPARTMENT, DECEMBER TERM, 1896. APPEAL by the defendant, The Empire Plaid Mills, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of February, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk's office on the 26th day of February, 1896, denying the defendant's motion for a new trial made upon the minutes. William E. Wyatt and Robert W. Winston, for the appellant. Samuel Untermyer and Louis Marshall, for the respondent. INGRAHAM, J.: The complaint alleges that on the 17th day of November, 1892, the Cone Export and Commission Company entered into a contract with the defendant by which the latter sold and agreed to deliver to the said Cone Export and Commission Company certain goods manufactured by the defendant at prices agreed upon, and that the said Cone Export and Commission Company paid on account of the purchase price of said goods the sum of two thousand ($2,000) dollars, which was received and retained by the defendant and still remains in its possession; that the said defendant has refused to deliver the goods sold by it, though such delivery was demanded, and that the said Cone Export and Commission Company sustained damage to the amount of five thousand nine hundred and fiftyfive and sixty-one one-hundredths ($5,955.61) dollars, which claim was assigned to the plaintiff, and for which the plaintiff asks judgment. The plaintiff proved on the trial a sale of the goods described in the complaint by the defendant to the plaintiff's assignor, the negotiations therefor having been between the agent of the plaintiff's assignor and a Mr. Field, who was the secretary and treasurer of the defendant corporation, its general manager, and who had general charge of its business at its mills; a contract in writing executed by Mr. Field on behalf of the defendant; the payment by plaintiff's assignor to the defendant of the sum of two thousand ($2,000) dollars on account of the goods purchased; its receipt by the defendant corporation, and the fact that the money was actually used by that corporation for its own purposes. FIRST DEPARTMENT, DECEMBER TERM, 1896. [Vol. 12. The defense to the action was that Field had no power to make this contract. It appeared that Field resided at the place where the defendant corporation had its place of business, generally managed its business, made sales for the corporation of its manufactured goods and purchased the raw materials used in such manufacture, had charge of the bank account of the corporation, and drew all checks drawn by the corporation. The other two stockholders and directors of the corporation did not reside at High Point, North Carolina, where the business of the corporation was carried on, took no part in the general management of its works, and did not make either purchases for it or sales on its account. The evidence of the defendant conclusively shows that all sales of manufactured goods made at the mills were made by Field; that he fixed the price of the goods and the terms of sale, and that he conducted the correspondence, and generally had charge of the defendant's business, and that his authority to make sales of the defendant's goods had never been questioned. Plaintiff testified that he had known of many sales made by Field as an officer of the corporation, which had been complied with by the corporation. The defendant, to sustain the defense, introduced in evidence a by-law of the company, which provided that the president should sign all contracts by which a greater liability than two hundred ($200) dollars is assumed or undertaken, and a section of the Code of North Carolina (§ 683), which provides that "every contract of every corporation, by which a liability may be incurred by the company exceeding one hundred dollars, shall be in writing, and either under the common seal of the corporation or signed by some officer of the company authorized thereto." The by-law of the company does not stand in the way of a recovery by the plaintiff in this action. It is conceded that Field had the general management of the company, and made all of its sales. He was the owner of two-thirds of the stock of the company, and the only officer who lived at the place where the mills were situated. or who attempted to attend to the business affairs of the corporation. The corporation had certainly clothed him with apparent, if not actual, authority to sell its goods, and the sale of these goods to the plaintiff's assignor was a valid sale, and binding upon the defendant without the written contract. Irrespective, therefore, of the |