Plaintiff in her complaint sets out several bonds alleged to have been issued by the corporation defendant, of which she has become ■the owner, and “entitled to all the moneys and rights secured by said bonds;” and she alleges that no accounting has been rendered to the holders of • the bonds of the income and receipts of the Spring Forest Cemetery Association since July 1,1878, although a demand has often been made therefor in behalf of the owners of the bonds; and she alleges that Erasmus D. Bobinsou, Tracy B. Morgan, Job H. Congdon, Benjamin Devoe, Edward B. Stephens, Alonzo C. Matthews, Harris G-. Bodgers, Bobert Brown, and Cyrus Strong “claim to be and are acting as trustees of the said the Spring Forest Cemetery Association; that they have the custody of all the money and property of the said the Spring Forest Cemetery Association; * * * that only a very small portion of the moneys received by the said the Spring Forest Cemetery Association has been paid on said bonds since July 1, 1878; that a large amount of money, but what amount plaintiff is unable to state, further than that it is between five thousand and twenty-five thousand dollars, at the time this complaint is made, has been received by the defendants, which is applicable and should be applied on said bonds; that said defendants neglect and refuse to-make any account whatever, refuse to recognize the validity of said bonds, and refuse to make any payment on said bonds, although such account and payment have often been demanded.” In the prayer of the complaint she asks for “an accounting by defendants of all the receipts of the said the Spring Forest Cemetery Association since July 1, 1878; that the amount applicable to said bonds may be ascertained, deducting all payments made on said bonds since July 1, 1878, and that plaintiff be paid the net amount applicable on said bonds, with interest on the sums withheld from the time the payments withheld should have been applied; and the plaintiff further demands that defendants Erasmus D. Bobinson, Tracy B. Morgan, Job ÍT. Congdon, Benjamin Devoe, Edward B. Stephens, Alonzo C. Matthews, Harris G. Bodgers, Bobert Brown, and Cyrus Strong be held personally liable lor the payments so withheld, and be adjudged to pay the same; and plaintiff asks for such other and further relief as shall be just.” Among other things set up in the-answer by way of defense, it is alleged “that said alleged bonds were made and signed without any authority or right of either said association, or of its trustees or officers, to make or issue the same, and contrary to law, and against public policy; that said alleged bonds were not the acts or obligations oi said association, and said association was not and is not bound or obligated thereby, and said alleged bonds were unauthorized, illegal, ultra vires, and void. ”
The referee found as conclusions of law, viz.: First. That the plaintiff is the owner of $21,000 of the bonds issued by the defendant corporation, and entitled to all moneys, principal and interest, remaining unpaid thereon. Second. That the bonds constitute a valid and legal indebtedness in favor of the plaintiff against the corporation defendant, “having been given as the-consideration for the title of the lands known as the «Spring Forest Cemetery, ’ and the improvements thereon, and the time and money expended. ” Third. That the plaintiff is entitled to an accounting by the defendant of all the receipts from the proceeds of sales of lots since July 1, 1878, and the amounts applicable to the payment of the said bonds ascertained and stated, and that there should be deducted from said sum all payments made on said bonds since July 1, 1878, and that the plaintiff be paid the net sum applica
The Spring Forest Cemetery Association was organized under chapter 133 of the Laws of 1847. The existence of the corporation was recognized by the legislature in chapter 323, Laws 1860, and the “acts of the said trustees, secretary, superintendent, and treasurer are hereby declared to be valid, notwithstanding the failure of the association to elect trustees annually, as required by its certificate of incorporation, and the statutes of this state entitled < Of Rural Cemeteries;’” It is competent for the legislature to recognize the continued existence of a corporation. In-re New York El. R. Co., 70 N. Y. 327, and cases cited in manuscript opinion of this court in Beattys v. Town of Solon, 19 N. Y. Supp. 37, (decided at this court.)- In the third section of the act of 1847, corporations organized under the act were allowed to “have and possess the general powers and privileges, and be subject to the liabilities and restrictions, contained in the third title of the eighteenth chapter of the first part of the ^Revised Statutes.” Subdivision 4, § 1, Rev. St., confers power “to hold, purchase, and convey such real and personal es-state as the purposes of the corporation shall require;” and, in the second section of title 3, it is provided; “The powers enumerated in the preceding section shall vest in every corporation that shall hereafter be created, although they may not be specified in its charter, or in the act under which it shall be incorporated.” From the provisions of the law to which reference has been had, it is obvious that the corporation defendant had the power to purchase real estate, and that, in pursuance of the power thus given to the corporation, a purchase was made in behalf of the corporation, and a conveyance taken of the property in its improved and bettered condition, on the-day of June, 1854, and the corporation had power “to hold” such real estate. Incidenu to the exercise of the powers conferred was the right, duty, and power to pay for property purchased immediately or at such subsequent time as might be agreed upon between the seller and the purchaser. Brady v. Mayor, 1 Barb. 591. Appellant calls our attention to Trust Co. v. Helmer, 77 N. Y. 71, which we think does not aid his contention. In that case the act done was in direct violation of the charter of the corporation, and was in direct conflict with the legal enactments, and it was therefore held that the notes taken in violation of law were void. The bonds in suit were issued in order to furnish the grantors of the property evidence of the indebtedness of the corporation for the property described in the deed received by the corporation; the bonds seem to have been authorized by the corporation; they are all of them executed by an acknowledged officer of the corporation.
2. It is insisted in behalf of the appellants that the referee erred in holding that the bonds constituted evidence of a valid and legal indebtedness against
3. We think the evidence produced before the referee warranted his conclusion that an account should be stated of the funds in the hands of the corporation remaining applicable to the payment of the indebtedness held by the plaintiff.
4. The extent of the liability, if any, of the defendants, other than the corporation, is, in effect, undetermined by the referee. When the hearing shall, be had upon the accounting, the facts in regard thereto will be developed, and a conclusion be reached more intelligible than can be declared upon the present
5. Numerous exceptions have been taken to the findings and refusals to-find, many of which are disposed of by the views we have already expressed; others have received attention; and, bearing in mind that this is an equity action, we have not found in any of the exceptions such error as calls for a. disturbance of the conclusion of the referee. Church v. Kidd, 3 Hun, 254. A point is made that the referee erred in the exercise of his discretion as to the-costs of the action. Considering all the aspects of the case as they appear in the appeal book, we are not prepared to say that he abused the discretion,, and therefore do not disturb his conclusion in that regard. Section 1022, Code Civil Proc. In Church v. Kidd, 3 Hun, 271, a similar question was presented, and the court observed: “In equity actions the granting or withholding of' costs rests in the discretion of the trial court;” and the action of the referee-was sustained. However, it may be observed, the discretion might have-been reserved to the court until after the coming in of the supplemental report. See note to Hathaway v. Russell, 7 Abb. N. C. 149. We are inclined' to sustain the report of the referee as to costs.
(а) As regards the appeal from the order settling the judgment to be entered' upon the report of the referee, we think the order should be modified so as to provide that the judgment should conform to the language of the referee’s report. Those portions of the judgment that transcend the language of the-referee’s report should be eliminated.
(б) The motion made before us for a new trial should be denied. Undoubtedly the referee, to whom the whole issues were referred, might have stated and-adjusted more fully the rights of the parties than he has done. However, we-are of the opinion that, in accordance with his suggestion, the court had-power in settling the interlocutory judgment to be entered upon his report, and to direct a further hearing before the same or another referee. Such practice seems to be sanctioned by Mundorff v. Mundorff, 1 Hun, 41; Bank v. Morton, 40 N. Y. Super. Ct. 328; Burbank v. Fay, 65 N. Y. 65; Church v. Kidd, 3 Hun, 254; Hathaway v. Russell, 7 Abb. N. C. 138; Maicas v. Leony,. (Sup.) 2 N. Y. Supp. 831, affirmed 113 N. Y. 619, 20 N. E. Rep. 586. If the-referee had reserved to himself the power to settle the form of the interlocutory judgment, it is reasonable to suppose that the interlocutory judgment would have been made in harmony with his findings of fact and conclusions-of law. Application, however, was made to a special term upon the referee’s report for an order settling the form of the interlocutory judgment. Apparently, from the record, as well as from what transpired before us upon the-argument, the special term omitted to take up the report and examine it in detail, and compare its language with the language of the proposed interlocutory judgment; but, on the contrary, granted a general order allowing the interlocutory judgment in the language proposed by the plaintiff. Upon an inspection of the interlocutory judgment, it seems to be found it contained some-language not warranted by the phraseology found in the referee’s report. It would have been orderly to have inserted in the interlocutory judgment the-conclusions of law stated by the referee. It should be allowed to stand. Some-parts of the decree seem to be in excess of the findings made by the referee. We think such portions of the decree should be stricken therefrom, and the-order settling the decree and the decree itself should be modified accordingly.
The foregoing views lead us to the following conclusions: (1) The motion-for a new trial is denied. (2) The order and interlocutory judgment should' be modified in the respects stated in the opinion, and as so modified affirmed, with costs of this appeal.
Motion denied. Order settling the interlocutory judgment and the inter— locutory judgment modified in accordance with the opinion, and as modified, affirmed, with costs of this appeal.