Fifth Avenue Bank of New York v. Forty-Second Street & Grand Street Ferry Railroad Company. The motion to dismiss the complaint should have been granted. M. Bank v. N. Y. & N. H. R. R. Co., 13 N. Y. 599; N. Y. & N. H. R. R. Co. v. Schuyler, 34 id. 30; Bruff v. Mali, 36 id. 200; Claflin v. F. & C. Bank, 25 id. 293; Moores v. C. N. Bank, 111 U. S. 156; Farrington v. S. B. R. R. Co., 150 Mass. 406; Wilson v. M. E. R. Co., 120 N. Y. 145; Anderson v. Nicholas, 28 id. 600; Holbrook v. Fauquier, 3 Cranch, 425; Stebbins v. P. F. Ins. Co., 3 Paige, 350; U. Bank v. Laird, 2 Wheat. 390; Cook on Stock 233] and S., § 368; Busk v. Lathrop, 22 N. Y. 535; Ballard v. Burgett, 40 id. 314; Moore v. M. N. Bank, 55 id. 41; Weaver v. Barden, 49 id. 286; Fairbanks v. Sargent, 104 id. 108; G. N. Bank v. Bingham, 118 id. 349; Holbrook v. N. J. Z. Co., 67 id. 616; Titus v. G. W. T. R. Co.. 61 id. 237; Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 106 id. 195. There is no element of estoppel in the case. Bickford v. Menier, 107 N. Y. 490; People v. Bank. 75 1d. 547. There was no implied authority in Allen by virtue of his office. M. Bank Case, 13 N. Y. 599: Dabney v. Stephens, 40- How. Pr. 341: 46 N. Y. 681 W. R. R. Co. v. Bayne, 11 Hun, 166; Adams v. Mills, 60 N. Y. 533. If a certificate could be authenticated at all, save by an actual transfer, this could be done only by the joint and several representations of each and all of the officers whose duty it was to sign the certificate. M. Bank Case, 13 N. Y. 599. From the point of view most unfavorable to defendant there was at least a question for the jury. Patterson v. Robinson, 116 N. Y. 193; Shipman v. Bank, 126 d. 318; Weisser v. Dennison, 10 id. 68; Welsh v. G. A. Bank, 73 id. 424. The plaintiff cannot avall itself of an estoppel, even assuming one to have existed before the notes, to secure which the certificates were pledged, were paid. Moores v. C. N. Bank, 111 U. S. 156; Farrington v. S. B. R. R. Co., 150 Mass. 406 Maguire v. Selden, 103 N. Y. 642; Mayenborg v. Haynes, 50 id. 675. The trial court erred in excluding testimony offered by defendant showing that Allen had no authority to authenticate certificates, and that no such practice existed, and the exceptlons to such rulings are well taken. N. Y. L. Ins Co. v. Beebe, 3 N. Y. 364. The verdict was excessive. Farwell v. I. & T. Bank, 90 N. Y. 483: Claflin v. Bank. 25 id. 293; Moores v. Bank, 111 U. S. 156: Farring ton v. S. B. R. Co.. 150 Mass. 406; Wilson v. M. E. R. Co., 120 N. Y. 145. Edward C. James, for respondent: Defendant is bound to make good the plaintiff's loss by reason of its dealings with these certificates on faith of their genuineness, as authenticated by the counter-signature of the transfer agent and the corporate seal without plaintiff in respect to the certificate for 160 any regard to the special assurances given to the shares upon which the court below predicated its decision. N. Y. & N. H. R. R. Co. v. Schuy ler, 34 N. Y. 30; Bank v. R. R. Co., 106 id. 195; Holbrook v. Zinc Co., 57 id. 616; Bank v. Clements, 6 Bosw. 166; 31 N. Y. 33; M. B. Co. v. Harned, 27 Fed. Rep. 486, 487; Weyh v. Boylan, 85 N. Y. 395, 399; In re B. & S. F. R. Co., L. R. (3 Q. B.) 584; Shaw v. P. P. & C. G. M. Co., L. R. (13 Q. B. Div.) 103; Tome v. R. R. Co., 39 Md. 36; R. R. Co. v. Bank, 60 id. 36; Commonwealth v. Bank, 137 Mass. 431; Holden v. Phelps, 141 id. 456; Jarvis v. M. B. Co., 53 Hun, 362; Bank v. Lamar, 11 Wall. 377; Edwards v. Dooley, 120 N. Y. 540, 551, 552; Bickford v. Menier, 107 id. 490; Walsh v. Ins. Co., 73 id. 5, 10. The defendant is also liable upon the certificate for 160 shares, because its secretary, treasurer, and transfer agent, placed in charge of its office to communicate for it with the outside world on matters relating to its stock and business, told the plaintiff's messenger, in answer to his inquiry about this certificate, as security for the proposed loan to Mr. Hofele, that it was genuine and correct and that Hofele was a stockholder there. White v. Bank, 64 N. Y. 316; Flickner v. Bank of U. S., 8 Wheat. 338; Titus v. G. N. T. Co., 61 N. Y. 237. The question of ultra vires can only [235 be raised by the state authorities. It is not available to the defendant in this action. N. Bank v. Stewart, 107 U. S. 676; Thompson v. S. N. Bank, 113 N. Y. 325. The defendant relies upon the proposition that one who receives from an officer of a corporation the notes or securities of such corporation, in payment of or as security for a personal debt of such officer. does so at his peril. This is untenable. Wilson v. M. E. R. Co., 120 N. Y. 145, 150; Titus v. T. Co., 61 id. 237. The plaintiff's counsel had the right to read in evidence such parts of the deposition of Eben S. Allen as he desired to bring before the court and jury, and the defendant's counsel had the same right. The objection that the defendant's counsel must read the whole or none was properly overruled. Gellatly V. Lowery, 6 Bosw. 113; Jordan v. Jordan, 3 T. & C. 269. When the evidence closed there was no disputed question of fact to go to the jury. Dillon v. Cockcroft, 90 N. Y. 649; Mayer v. Drew, 115 id. 556. Maynard, J. In September, 1885, the plaintiff, a domestic banking corporation, loaned one Hofele $15,000 upon his individual note payable in three months, and secured by the pledge of an instrument which upon its face purported to be a certificate for 160 shares of stock of the defendant, a domestic railroad corporation having its office and principal place of business in the same city with the plaintiff. It was subsequently discovered that this certificate was spurious, When overissued certificates of stock, signed and that the signature thereto of the defendor purporting to be signed by the corporate of- ant's president had been forged by one Eben ficers, having authority to issue stock, and ac-S. Allen, its secretary, who was also its 234] tually issued by such officers, are purchased by any person, or are taken in any manner in good faith and for value, such bona fide holder may sue the corporation in tort and recover damages. Cook on Stock, etc., § 298; R. R. Co. v. Schuyler, 34 N. Y. 30, 49, 60; Bruff v. Mall, 36 id. 200; Titus v. T. Co., 5 Lans., 250; 61 N. Y. 237; Bank of Kentucky v. S. Bank, 1 Pars. Sel. Cas. 180; Tome v. R. R. Co., 39 Md. 36; R. R. Co. v. Bank, 60 id. 36; Willis v. R. R. Co., 6 Wkly. Notes Cas. 461: Willis v. Fry, 13 Phila. 33; Bank v. Kurtz, 99 Penn. St. 344; Allen v. S. B. R. R. Co., 5 Law Rep. Ann. 716. treasurer and transfer agent, and who had in these capacities signed and countersigned the certificate and delivered it to Hofele, who was his partner in business, for the purpose of raising money upon it, to be used in the firm undertaking. We are required upon this appeal to determine how far the defendant company is liable for the loss sustained by the plaintiff in Fifth Avenue Bank of New York v. Forty-Second Street & Grand Street Ferry Railroad Company. consequence of this fraudulent and criminal act of one of its principal officers. *236] *The good faith of the plaintiff in the transaction by means of which it became possessed of the forged certificate seems to be satisfactorily established. Hofele was a stranger to the officers of the bank, and they had no knowledge of his business relations with Allen, or that the latter was in any way interested in the proposed loan. Before acting upon Hofele's application for a discount, the plaintiff's president sent its confidential clerk to the office of the defendant with the certificate, who, pursuant to instructions, showed it to the person in charge of the office, who was then unknown to the clerk, but who proved to be Allen, its secretary and treasurer, and who was asked if it was genuine and all right, and if Hofele was a stockholder of the company, to which an affirmative reply was given, and a description of Hofele, from which the bank might identify him as the person who had presented the certificate and sought the loan upon the strength of it. The clerk reported the result of the interview to the plaintiff's officers, who thereupon discounted Hofele's note for the sum named, payable in three months, and accepted the certificate as collateral security in the usual form for its payment and for all other present or future demands of the bank against him. The note was renewed from time to time, and increased in amount, and some smaller notes given, until his indebtedness amounted to $35,000 and upwards. Meanwhile the plaintiff had taken as additional security a like certificate for fifty shares, to which the signature of the defendant's president had also been forged, and which was first received as security for a loan of $5,000. This loan was afterwards consolidated with the other loans, and became a part of the total indebtedness for which both certificates were held as security. Upon the pledge of the fifty-share certificate, the plaintiff made no inquiries of the defendant or of any of its officers with reference to its genuineness. In July, 1889, Hofele ordered the plaintiff to sell the two certificates, and signed the usual blank transfer or power of attorney for that purpose upon the back of them. When they were first hypothecated he had *237] executed a separate power of attorney authorizing plaintiff to sell and transfer them in case of default in the payment of the loans. The certificates were sold by plaintiff's brokers, and the net sum of $43,890 received and placed to Hofele's credit, and his indebtedness charged to his account leaving an apparent balance due him of $8.479. When the certificates were presented by the purchasers at the office of defendant for transfer, it was refused upon the ground that they were forged and spurious; and the treasurer and transfer agent wrote across their face in red ink the words "No good," and added their official signatures to the statement. The plaintiff then refunded to the purchasers the amount paid upon the sale of the certificates, and took an assignment from them of all rights of action which they had against the defendant, and upon the refusal of the defendant to recognize the certificates as valid evidences of title to its shares of stock, this action was brought, in which the plaintiff has recovered for its loss on account of the invalidity of the 160 share certificate, and the defendant alone has appealed. With respect to this certificate we fail to discover any omission on the part of the plaintiff which would impeach its character as a bona fide holder. It made inquiry at the office of the defendant, where its books and records were kept, and of the officer in charge, whose duty it was to furnish correct information upon the subject, and it had no reason to suspect that the assurances it received were misleading or false, or that the officers of the defendant had entered into a conspiracy with Hofele to defraud the public. It resorted to the only source of verification of the truth of Hofele's statements which was readily accessible; and it exer. cised all the care and vigilance which a prudent man would be expected to exhibit in the ordinary course of the business in which it was engaged. There was no circumstance proven which required a display of greater diligence. Nor were the rights of the plaintiff affected by the sale of the certificates and their redelivery to the plaintiff upon a refund of the proceeds of the sale[*238 to the purchasers. Though nominally sold on the account of Hofele, the plaintiff was the real party in interest in the transaction. There was an implied guaranty of the genuineness of the. certificates, which the vendor might be required to make good; and as the plaintiff had received the fruits of the transaction, the consideration of which had failed, it could not lawfully withhold them from the purchasers when restoration was demanded. The purchasers were also bona fide holders of the certificates, and the plaintiff by their assignment acquired the right to the enforcement of whatever remedies they might have in that capacity against the defendant, although it was then aware of their fraudulent issue. While certificates of stock in railroad and other business corporations do not possess the qualities of commercial paper in the full sense of the term, yet, as evidences of title, when the transfer indorsed thereon is signed in blank by the shareholder, they become, in effect, so far as the public is concerned, as if they had been issued to bearer. They are then readily transferable by delivery, and have an element of negotiability which renders them an important factor in the financial and commercial transactions of the country. They may be and are frequently listed upon the stock exchanges, and their sales represent a large proportion of the daily business of these bodies. Fifth Avenue Bank of New York v. Forty-Second Street & Grand Street Ferry Railroad Company. The plaintiff must therefore be accorded whatever advantage belongs to a holder in good faith of a chose in action of this character, and we have only to consider how far the defendant is responsible for the acts and representations of its officers, by means of which Hofele was enabled to obtain the plaintiff's money upon the faith of paper apparently valid but in fact worthless. The defendant was incorporated under the General Railroad Law, originally with a capital of $600,000, afterwards increased to $750,000, all of which had been issued, excepting twenty shares, before 1870. Its books relating to the issue and transfer of stock consisted of a certificate book, a transfer book, and a stock ledger, which were all *239] kept by the secretary, and *were in his immediate custody; but in his official capacity and work he was subject to the supervision of the president; and all the officers were under the general control and management of a board of directors. It is apparent from the evidence that the secretary was, ex officio, the transfer agent of the company. At least from 1868 to the present time the secretary had acted as such agent, and there is no provision in the by-laws for the separate appointment of a transfer agent, and the only reference to such an officer is in a single paragraph in § fifteen, where it is provided that "all certificates shall be issued and signed by the president and treasurer and countersigned by the transfer agent, under such other regulations as the board of directors or finance committee may from time to time prescribe." Whether the secretary was by virtue of his office transfer agent is not material, but the fact remains that so far as the evidence discloses anything upon the subject, he always discharged the duties of that office, and in the performance of the work was fitly characterized as the transfer agent of the company. When stock was issued, either in payment of an original subscription, or upon its transfer from one person to another, the engraved certificate was taken from the certificato book and filled up by the secretary, presented to the president and treasurer, who signed it, and it was then countersigned by the secretary as transfer agent, and sealed by him with the seal of the corporation, and delivered to the stockholder or transferee named in it. The secretary at the same time inserted the proper data in the stub remaining in the certificate book, and made the necessary entries in the transfer book and the stock ledger. The certificate received by plaintiff from Hofele had been taken from the certificate book. It appeared upon its face to be perfect and regular in This result follows from the application every respect. It had the name of the presi- of the fundamental rules which determine dent and treasurer signed to it, was counter-the obligations of a principal for the acts of signed by the transfer agent, and bore the impress of the corporate seal. It recited that Hofele was the owner of 160 shares of $100 each of the capital stock of the company, contained the usual provisions in re*240] gard to the mode *of transfer, and de clared that no certificate should bind the company unless signed by the president and countersigned by its treasurer and transfer agent. The in testimonium clause asserted that the defendant had caused that particular certificate to be signed by its president and countersigned by its treasurer and transfer agent and sealed with its corporate seal February 6, 1885. It is very clear that under the regulations adopted by the defendant, and pursuing the mode of procedure which it had prescribed, the final act in the issue of a certificate of stock was performed by its secretary and transfer agent, and that when he countersigned it and affixed the corporate seal and delivered it with the intent that it might be negotiated, it must be regarded, so long as it remained outstanding, as a continuing affirmation by the defendant, that it had been lawfully issued, and that all the conditions precedent upon which the right to issue it depended had been duly observed. Such is the effect necessarily implied in the act of countersigning. This word has a well-defined meaning both in the law and in the lexicon. To countersign an instrument is to sign what has already been signed by a superior, to authenticate by an additional signature, and usually has reference to the signature of a subordinate, in addition to that of his superior, by way of authentication of the execution of the writing to which it is affixed, and it denotes the complete execution of the paper. Worcester's Dic. When, therefore, the defendant's secretary and transfer agent countersigned and sealed this certificate and put it in circulation, he declared in the most formal manner that it had been properly executed by the defendant, and that every essential requirement of law and of the bylaws had been performed to make it the binding act of the company. The defendant's bylaws elsewhere illustrate the application of the term when used with reference to the signatures of its officers. In § 10 it is provided that all moneys received by the treasurer should be deposited in bank to the joint credit of the president and treasurer, to be drawn out only by the check of the treasurer, countersigned by the president. If the president should forge the name of[*241 treasurer to a check and countersign it and put it in circulation and use the proceeds for his individual benefit, we apprehend it would not be doubted that this would be regarded as a certificate of the due execution of the check, so far as to render the company responsible to any person who innocently and in good faith became the holder of it. * his agent. They are embraced in the comprehensive statement of Story in his work on Agency (9th ed. § 452), that the principal is to be "held liable to third persons in a civil suit for the frauds, deceits, 'concealments, misrepresentations, torts, negligences, Fifth Avenue Bank of New York v. Forty-Second Street & Grand Street Ferry Railroad Company. cannot be done. The fact of forgery does not extinguish his right when it has been perpetrated by or at the instance of an officer placed in authority by the corporation and intrusted with the custody of its[*243 stock books and held out by the company as the source of information upon the subject." Having reached the conclusion that the de fendant is liable for the representations of its officers appearing upon the face of its certificate over their official signature and under the seal of the corporation, we do not deem it necessary to consider the effect of the oral representations made at the office of the company to the plaintiff's clerk, except so far as they bear upon the question of the good faith of the plaintiff in the acquisition of the certificate. The judgment and order must be affirmed, with costs. All concur. Judgment affirmed. and other malfeasances or misfeasances and 26; Western M. R. Co. v. Franklin Bk., 60 omissions of duty of his agent in the course Md. 36; Com. v. Bk., 137 Mass. 431; Holden of his employment, although the principal v. Phelps, 141 id. 456; Manhattan Beach Co. did not authorize, or justify, or participate v. Harned, 27 Fed. Rep. 486; Shaw v. Port in, or, indeed, know of such misconduct, or Phillip & Co., 13 Q. B. Div. 103. even if he forbade the acts or disapproved of The rule is, we think, correctly stated in them. In all such cases the rule applies re- Beach on Private Corporations (vol. 2, § 488, spondeat superior, and is founded upon pub- p. 791): "When certificates of stock conlic policy and convenience; for in no other tain apparently all the essentials of genuineway could there be any safety to third per-ness a bona fide holder thereof has a claim sons in their dealings, either directly with to recognition as a stockholder, if such stock the principal, or indirectly with him through can legally be issued, or to indemnity if this the instrumentality of agents. In every such case the principal holds out his agent as competent and fit to be trusted, and thereby in effect he warrants his fidelity and good conduct in all matters within the scope of the agency." It is true that the secretary and transfer agent had no authority to is sue a certificate of stock except upon the surrender and cancelation of a previously existing valid certificate, and the signature of the president and treasurer first obtained to the certificate to be issued; but these were facts necessarily and peculiarly within the knowledge of the secretary, and the issue of the certificate in due form was a representation by the secretary and transfer agent that these conditions had been complied with, and that the facts existed upon which his right to act depended. It was a certificate apparently made in the course of his employment as the agent of the company and within 242] the scope of the general authority conferred upon him, and the defendant is under an implied obligation to make indemnity to the plaintiff for the loss sustained by the negligent or wrongful exercise by its of ficers of the general powers conferred upon them. Griswold v. Haven, 25 N. Y. 599, 82 Am. Dec. 380; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30; Titus v. G. W. Turn-K. F. Land Co. v. Roe, 7 App. Div. 369; Bank pike Co., 61 id. 237; Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 106 id. 199, 60 Am. Rep. 440. The learned counsel for the defendant seeks to distinguish this case from the authorities cited, because the signature of the president to the certificate was not genuine; but we cannot see how the forgery of the name of the president can relieve the defendant from liability for the fraudulent acts of its secretary, treasurer, and transfer agent. They were officers to whom it had intrusted the authority to make the final declaration as to the validity of the shares of stock it might issue, and where their acts, in the apparent exercise of this power, are accompanied with all the indicia of genuineness, it is essential to the public welfare that the principal should be responsible to all persons who receive the certificates in good faith and for a valuable consideration and in the ordinary course of business, whether the But this case is in effect overruled by New indicia are true or not. Beach on Pr. Cor. York & N. H. R. Co. v. Schuyler, 34 N. Y. 30, in vol. 2, p. 790; North River Bank v. Aymar, which the same transactions were involved, and 3 Hill, 262; Jarvis v. Manhattan Beach Co.,poration itself issues false certificates and perthe doctrine is plainly declared that if a cor53 Hun, 362; Tome v. Parkersburg Branch, 39 Md. 36, 17 Am. Rep. 540; Baltimore, etc., R. Co. v. Wilkens, 44 Md. 28, 22 Am. Rep. Followed in Hellman v. Forty-Second Street & G. Street Ferry R. Co. 148 N. Y. 727; Watson v. Boston Woven Cordage Co. 75 Hun, 116; Jarvis v. Manhattan Beach Co. 75 Hun, 103. Cited in Hanover Bank v. American Dock & of New York v. American Dock & Trust Co. 70 Forty-Second Street & G. Street Ferry R. Co. Co. 13 N. Y. 599, 4 Duer, 541, it was decided In Mechanics' Bank v. New York & N. H. R. that a corporation was not liable to one who innocently loaned money on the security of stock whom it was issued and who obtained the loan fraudulently overissued, where the person to paid nothing for it, and the certificate, although correct on its face and signed by the proper officers, was in fact issued without power to issue any, as the stock had all been taken, and no further certificates could be issued except in tially on the theory that such acts were not case of transfers. The decision rested substanwithin the real or apparent scope of the agent's power. In mits false transfers of spurious stock, It is lia- Fifth Avenue Bank of New York v. Forty-Second St. & Grand St. Ferry R. Co.-Matter of Rochester. the president a transfer agent of the corporation, and gave him full opportunity to issue stock over his own signature, and for about seven years made no examination of his acts, during which time he made large fraudulent | overissues of stock. In Holbrook v. New Jersey Zinc Co. 57 N. Y. 616, it is held again that the corporation having power to issue certificates of stock is bound by the truth of the representation that the person named in such certificates is the owner and entitled to dispose of them. Only a bona fide holder can be protected in his right to certificates of stock wrongfully issued. Ryder v. Bushwick R. Co. 134 N. Y. 83. In Manhattan L. Ins. Co. v. Forty-Second Street & G. Street Ferry R. Co. 46 N. Y. S. R. 130, affirmed in 139 N. Y. 146, it is held that the president of a corporation, giving as collateral security for his own debt shares of the stock forged by him, is not acting in his official capacity, and the creditor cannot be protected against the forgery. Yet, in Titus v. Great Western Turnp. Co. 61 N. Y. 237, in which a person who took as collateral security from the treasurer of a corporation certificates of stock fraudulently overissued by him, but having the corporate seal and signature of the president and treasurer, as required by the by-laws, was held protected. The cases elsewhere are also in conflict. For note upon the liability of a corporation for fraud or forgery of its officers in the issue of stock, see the main case in 19 L. R. A. 331. A corporation may be held liable in damages for a fraud of its officers in issuing stock, where It cannot be compelled to issue valid shares in place of those fraudulently issued, for the reason that this would cause an overissue of its capital stock. Allen v. South Boston R. Co. 150 Mass. 200, 5 L. R. A. 716. The forgery of the necessary signature of the secretary to certificates of stock, by the president of a corporation, whose only authorIty as to the issue of certificates is to sign them, does not make the corporation liable therefor to holders who took them in private and personal transactions with the president. Hill v. C. F. Jewett Pub. Co. 154 Mass. 172, 13 L. R. A. 193. MATTER OF ROCHESTER. (Aff'g 48 N. Y. S. R. 358, 20 N. Y. Supp. 506.) Eminent domain-publication of noticesale of land acquired for public use. A statute empowering a city to sell lands acquired for park purposes under its provisions, when they shall cease to be necessary for such purpose, is not unconstitutional as allowing the condemnation of lands for private purposes. Publication of the resolutions of the common council of a city for the taking of land for park purposes is a sufficient compliance with a statute requiring that notice of the determination of the council be published. by chapter 183 has been served or given as required by the statute. Merritt v. Village of Portchester, 71 N. Y. 309; Stuart v. Palmer, 74 id. 188; In re Stonebridge, 32 N. Y. S. R. 1070; Comrs. of Pilots v. Vanderbilt. 31 N. Y. 265; Rathbun v. Acker, 18 Barb. 393. If this proceeding can be maintained private property may be obtained for private purposes. An act of the legislature which permits the tak ing of the private property of one individual, without his consent, and giving it to another, is unconstitutional and void. Embury v. Connor, 3 N. Y. 511; In re Albany St., 11 Wend. 149. 151; N. Y. & O. M. R. Co. v. Van Horn, 57 N. Y. 473; In re D. C. Assn., 66 id. 569; In re John & Cherry Sts., 19 Wend. 659, Taylor v. Porter, 4 Hill, 140; Varick v. Smith, 5 Paige, 137, 159, 160; Cothrane v. Van Surley, 20 Wend. 365; Wilkinson v. Leland, 2 Pet. (U. S.) 658. Edward Harris, for respondents: The statute does not require the service of notice for the appointment of commissioners_to be made on the landowner. main, § 367; Popp v. Comrs., 19 Ohio. 173, 182: Lewis on Em. DoOwners, etc., v. Mayor, etc.. 15 Wend. 374: Matter of U. E. R. R. Co., 112 N. Y. 61, 73, 77. tained therein was not signed, is untenable. The appellant cannot successfully attack these proceedings by reason of section 29 of the act which authorizes the park commissioners to sell any land which they shall determine to be no longer necessary for park purposes. Laws of 1869, chap. 161; Laws of 1875, chap. 569; Laws of 1884, chap. 173; Lewis on Em. Domain, § 596. O'Brien, J. The city of Rochester is empowered by chapter 193 of the Laws of 1888, to acquire lands, by condemnation proceedings, for use as a public park. The Supreme Court made an order appointing commissioners to condemn the lands, and subsequently another order confirming their report. The appellant, a property [*246 owner interested in some of the lands so taken, appealed to the General Term from both orders, which were there affirmed, and he now appeals to this court. The principal Term was that the compensation awarded to contention of the appellant at the General him for his lands taken was inadequate; and upon this question the court, with power to examine all the evidence, held against him, and, we think, properly. No erroneous principle of estimating the damages was adopted, nor was any ruling made or testimony admitted that was prejudicial to him. In this APPEAL from order of the General Term court there are but two questions presented of the Supreme Court in the fifth judicial department, made October 4, 1892, *244] *which affirmed an order of Special Term, appointing commissioners to condemn lands for public purposes, and an order confirming their report. The nature of the proceeding, and the facts, so far as material, are stated in the opinion. John Desmond, for appellant: The papers upon which this proceeding is founded do not show that the notice required that are necessary to be noticed. First. That the notice required by the statute was not given. The city authorities caused to be published in the manner, and for the period of time required by the statute, a preamble and resolutions passed by the common council, in which it is recited that a map of the lands proposed to be taken, and copy thereof, had been duly made, certified, and filed, as required by law; that a resolution of the common council, declaring the intention of the city to take the pieces of land described therein, had been duly passed, and notice of such intention given, |