Learned, P. J.
This is an action to recover an alleged balance of account. The defense is a counter-claim, and the questions in the case arise on the counter-claim. After issue joined, the defendant applied to the special term, in September, 1880, for the removal of the cause to the circuit court of the United States, southern district of Hew York, on the ground that the suit and matters in dispute arose under the laws of the United States. The motion was denied. 59 How. Pr. 482. On appeal by defendant, the order of denial was affirmed by the general term, in February, 1881. 24 Hun, 140. In June, 1881, on an affidavit, the defendant asked leave to serve a supplemental answer, duly verified, setting forth the fact that defendant had presented said petition and the usual bond, and had on the 18th day of October, 1880, filed a copy of the record in the circuit court of the United States, southern district of Hew York, and averring that thereby this cause was removed to said court, and this supreme court was ousted of jurisdiction. The court, at special term, denied the motion. The cause afterwards came on to be tried before the special term in September, 1887, and a decision was rendered for the plaintiff, rejecting defendant’s counter-claim. Judgment was entered, and defendant appealed, stating in the notice of appeal its intention to bring up for review the order denying the motion for leave to serve a supplemental answer. Accordingly the defendant, in making up the case for the appeal, inserted therein the supplemental answer and the affidavit on which said motion for leave to serve such answer was made, and also the order denying such leave. Upon'settlement of the case an order was made striking out said affidavit and supplemental answer from the case, and from that order the defendant also appeals.
It was held in Illius v. Railroad Co., 13 N. Y. 597, that the order of the general term affirming the refusal to transfer the case was not appealable. If this be correct, the defendant could not by appeal have that order reversed. But the defendant could do what was done in a similar case. Stevens v. Insurance Co., 41 N. Y. 149. It could set up the facts showing that the cause ought to have been (and perhaps legally was) removed, and it could then prove these facts on the trial, and thus claim, before the court of appeals, on appeal from the judgment, a reversal for want of jurisdiction. This the defendant attempted to do, but the privilege of setting up these facts by supplemental answer was denied. An appeal from a judgment brings up for review an intermediate order, which necessarily affects the final judgment. The question, then, is whether the refusal to permit the supplemental answer necessarily affected the final judgment. It seems to us that this privilege of reviewing, on appeal from final judgment, an intermediate order, is not to be extended beyond the strict language of the section. A party against whom an order is made by the special term may appeal to the general term. If he neglects to do this within the proper time, it is not reasonable that he should, after the cause has been tried and decided, bring up this order, unless it necessarily affects the judgment. The defendant says, and says correctly, that if the proceedings for removal are regular, in a proper case, the state court is ousted of jurisdiction, whether the order of removal is granted or denied. Shaft v. Insurance Co., 67 N. Y. 544. If defendant, then, is correct as to the law respecting the right to remove this case, (as to which see Leather Manuf'rs Bank v. Cooper, 120 U. S. 778, 7 Sup. Ct. Rep. 777,) this court has no jurisdiction. But whether the order refusing to permit defendant to serve a supplemental answer necessarily affected the final judgment is another question. It may be that if an appeal had been taken from that order we should have reversed it. Whether, if the order had been granted, the final judgment would have been different, depends, partly at least, on what might be proved under the supplemental answer. And clearly there must be a uniform rule [165]*165as to all refusals to permit supplemental answers being reviewed on appeal from judgment. We therefore think that the order denying leave to file the supplemental answer, whether correct or not, cannot be reviewed on this appeal from the judgment. In this view we see no reason to reverse the order striking out that part of the case.
Tlie defendant on the trial of the case proved the facts claimed to show a removal of the case as aforesaid, and objected to any proceedings, on the ground that the cause was now pending in the circuit court of the United States, southern district of New York, and again moved, on like ground, for a dismissal. We are aware of the decision in Removal Cases, 115 U. S. 1, 5 Sup. Ct. Rep. 1113, and of the Leather Manuf’rs Bank Case, above cited. But we are not prepared to say what the effect of the statute of 1882 is upon this case; and, as the question of removal was once before us, we think it best to adhere to the decision then made. With great respect for the court whose decisions were last cited, we do not see how a claim for money against the defendant, whose corporate existence is admitted, is a suit arising under the laws of the United States, any more than a similar action against a man who had once been a slave would be a suit arising under the laws of the United States, on the ground that his right to sue and be sued was given by the fourteenth amendment.
This brings us to a consideration of the merits. The learned justice who tried this case held that whatever acts were done by Ostrander, the treasurer of plaintiff, in the matter in question, were done as agent for the administrator, and not as treasurer of the bank. We cannot agree with this conclusion, so far as the defendant is concerned. The plaintiff kept an account with defendant. The account in part is given in evidence. It shows, among other things, October 11,1877, 100 Lake Shore, $7,037.50, indicating a sale of stock by defendant for plaintiff. The scrip in question was sent in a letter of the form used for years in plaintiff’s correspondence with defendant. The defendant could not inquire whether the scrip belonged to plaintiff or not. Plaintiff might have had an interest in it or lien upon it, so far as defendant knew. The express charges on this scrip were in the account, and have not been objected to. i
The plaintiff objects that it is not liable, because Reynes & Villere sold 144 shares instead of 194. If this had caused any injury to plaintiff, there would be force in the objection. But the error was a positive benefit to plaintiff; for it diminished the possible liability by $500. There was no direction to sell either the whole or none. An agent authorized to sell a house might not be justified in selling half of it. But unless special directions to the contrary were given, an agent who had shares of stock to sell might sell in parcels, or might sell a part if he could not the whole; or he might sell a part to one person, and the rest to another. Each sale would be valid, and within his authority. So was the sale in the present case.
The defendant did exactly what the plaintiff requested. If in so doing it suffered any loss, or became liable to damage, the plaintiff must indemnify. The defendant assumed no risk as to the power of the administrator to make a transfer. It could know nothing about that.
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Learned, P. J.
This is an action to recover an alleged balance of account. The defense is a counter-claim, and the questions in the case arise on the counter-claim. After issue joined, the defendant applied to the special term, in September, 1880, for the removal of the cause to the circuit court of the United States, southern district of Hew York, on the ground that the suit and matters in dispute arose under the laws of the United States. The motion was denied. 59 How. Pr. 482. On appeal by defendant, the order of denial was affirmed by the general term, in February, 1881. 24 Hun, 140. In June, 1881, on an affidavit, the defendant asked leave to serve a supplemental answer, duly verified, setting forth the fact that defendant had presented said petition and the usual bond, and had on the 18th day of October, 1880, filed a copy of the record in the circuit court of the United States, southern district of Hew York, and averring that thereby this cause was removed to said court, and this supreme court was ousted of jurisdiction. The court, at special term, denied the motion. The cause afterwards came on to be tried before the special term in September, 1887, and a decision was rendered for the plaintiff, rejecting defendant’s counter-claim. Judgment was entered, and defendant appealed, stating in the notice of appeal its intention to bring up for review the order denying the motion for leave to serve a supplemental answer. Accordingly the defendant, in making up the case for the appeal, inserted therein the supplemental answer and the affidavit on which said motion for leave to serve such answer was made, and also the order denying such leave. Upon'settlement of the case an order was made striking out said affidavit and supplemental answer from the case, and from that order the defendant also appeals.
It was held in Illius v. Railroad Co., 13 N. Y. 597, that the order of the general term affirming the refusal to transfer the case was not appealable. If this be correct, the defendant could not by appeal have that order reversed. But the defendant could do what was done in a similar case. Stevens v. Insurance Co., 41 N. Y. 149. It could set up the facts showing that the cause ought to have been (and perhaps legally was) removed, and it could then prove these facts on the trial, and thus claim, before the court of appeals, on appeal from the judgment, a reversal for want of jurisdiction. This the defendant attempted to do, but the privilege of setting up these facts by supplemental answer was denied. An appeal from a judgment brings up for review an intermediate order, which necessarily affects the final judgment. The question, then, is whether the refusal to permit the supplemental answer necessarily affected the final judgment. It seems to us that this privilege of reviewing, on appeal from final judgment, an intermediate order, is not to be extended beyond the strict language of the section. A party against whom an order is made by the special term may appeal to the general term. If he neglects to do this within the proper time, it is not reasonable that he should, after the cause has been tried and decided, bring up this order, unless it necessarily affects the judgment. The defendant says, and says correctly, that if the proceedings for removal are regular, in a proper case, the state court is ousted of jurisdiction, whether the order of removal is granted or denied. Shaft v. Insurance Co., 67 N. Y. 544. If defendant, then, is correct as to the law respecting the right to remove this case, (as to which see Leather Manuf'rs Bank v. Cooper, 120 U. S. 778, 7 Sup. Ct. Rep. 777,) this court has no jurisdiction. But whether the order refusing to permit defendant to serve a supplemental answer necessarily affected the final judgment is another question. It may be that if an appeal had been taken from that order we should have reversed it. Whether, if the order had been granted, the final judgment would have been different, depends, partly at least, on what might be proved under the supplemental answer. And clearly there must be a uniform rule [165]*165as to all refusals to permit supplemental answers being reviewed on appeal from judgment. We therefore think that the order denying leave to file the supplemental answer, whether correct or not, cannot be reviewed on this appeal from the judgment. In this view we see no reason to reverse the order striking out that part of the case.
Tlie defendant on the trial of the case proved the facts claimed to show a removal of the case as aforesaid, and objected to any proceedings, on the ground that the cause was now pending in the circuit court of the United States, southern district of New York, and again moved, on like ground, for a dismissal. We are aware of the decision in Removal Cases, 115 U. S. 1, 5 Sup. Ct. Rep. 1113, and of the Leather Manuf’rs Bank Case, above cited. But we are not prepared to say what the effect of the statute of 1882 is upon this case; and, as the question of removal was once before us, we think it best to adhere to the decision then made. With great respect for the court whose decisions were last cited, we do not see how a claim for money against the defendant, whose corporate existence is admitted, is a suit arising under the laws of the United States, any more than a similar action against a man who had once been a slave would be a suit arising under the laws of the United States, on the ground that his right to sue and be sued was given by the fourteenth amendment.
This brings us to a consideration of the merits. The learned justice who tried this case held that whatever acts were done by Ostrander, the treasurer of plaintiff, in the matter in question, were done as agent for the administrator, and not as treasurer of the bank. We cannot agree with this conclusion, so far as the defendant is concerned. The plaintiff kept an account with defendant. The account in part is given in evidence. It shows, among other things, October 11,1877, 100 Lake Shore, $7,037.50, indicating a sale of stock by defendant for plaintiff. The scrip in question was sent in a letter of the form used for years in plaintiff’s correspondence with defendant. The defendant could not inquire whether the scrip belonged to plaintiff or not. Plaintiff might have had an interest in it or lien upon it, so far as defendant knew. The express charges on this scrip were in the account, and have not been objected to. i
The plaintiff objects that it is not liable, because Reynes & Villere sold 144 shares instead of 194. If this had caused any injury to plaintiff, there would be force in the objection. But the error was a positive benefit to plaintiff; for it diminished the possible liability by $500. There was no direction to sell either the whole or none. An agent authorized to sell a house might not be justified in selling half of it. But unless special directions to the contrary were given, an agent who had shares of stock to sell might sell in parcels, or might sell a part if he could not the whole; or he might sell a part to one person, and the rest to another. Each sale would be valid, and within his authority. So was the sale in the present case.
The defendant did exactly what the plaintiff requested. If in so doing it suffered any loss, or became liable to damage, the plaintiff must indemnify. The defendant assumed no risk as to the power of the administrator to make a transfer. It could know nothing about that. It was for the administrator to know whether he could deliver what he proposed to sell; and it was for the plaintiff to know or to ascertain that, when it'employed defendant to send the scrip to its correspondent. The Germania Bank did just what was proper. It was in accordance with custom and good dealing to make such a sale through a broker. If the Germania Bank had neglected to take this course, and had attempted to make the sale itself, it would have been liable, if it had thereby failed to get the full value. The sale made by Reynes & Villere to Willoz was properly made, and no fault can be charged to them. But neither Reynes ■& Villere nor the Germania Bank could deliver the stock on the next day, when by custom it should have been delivered. For this inability to deliver [166]*166they were not responsible. It is shown that, unless there be a special agreement, the stock is to be delivered the next day; and it is found that the Ger-mania Bank made efforts to secure the transfer of the stock, but was unsuccessful. The reason given by the company for refusing to transfer, as found, was that there was a contest between the administrator and the heirs. (The word “heirs” was probably used in the civil-law meaning.) And a good deal of argument has been adduced to show that the title to the stock was in H. Joseph Budington, administrator appointed in New York, and that the plaintiff could have compelled a transfer. Perhaps, however, that matter is not directly material. The question is, were Beynes & Villere liable to "Willoz for the failure to deliver the stock at the time it was deliverable? Whether the Crescent City Bail road Company rightfully or wrongfully refused to transfer might be important in an action against that company. But could their wrongful refusal excuse the broker who sold the stock for his failure to deliver? Can we construe the contract of sale as an agreement to deliver, unless the company wrongfully refuses to transfer? Would a purchaser buy, if there were such a condition ?
But, further, the law of Louisiana was proved on the trial. It was shown that under the circumstances above detailed, as to the action of H. Joseph Budington, the assets became vested in the court of Louisiana; that if these scrip certificates were sent from New York to Louisiana with written authority sufficient to effect a valid sale in New York, the sale in Louisiana could be effected only by authority of the court of Louisiana. It is also shown that an administrator cannot be appointed in Louisiana without giving a bond. Now, the law thus proved to exist in Louisiana is the law of this state. Although personal property is subject to the law which governs the person of the owner in respect to succession, yet the right which an individual may claim to personal property in one country under title from a person domiciled in another can be asserted only by the legal instrumentalities provided by the country where the claim is made. Hence an administrator appointed in one state has not, as such, any authority beyond that state. Parsons v. Lyman, 20 N. Y. 103; Stone v. Scripture, 4 Lans. 186. Now, we do not mean that the administrator appointed in New York might not have received the voluntary payment of debts in Louisiana; nor need we say that, if the Crescent City Bailroad Company had voluntarily transferred this stock, such transfer would not (at least according to our laws) have been good. But the doctrine is that the foreign administrator could not compel a transfer, and hence the company could not be said to have acted wrongfully in refusing. This is still more evident, since previous to the time in question an administrator had been appointed in Louisiana. We cannot, therefore, see why Beynes & Villere were not liable to Willoz for the damages. .
The plaintiff urges that Keynes & Villere, the Germania Bank, and the defendant did not give plaintiff an opportunity to compel the transfer. But Willoz was not bound to wait until the remote principal had been notified, and had carried through a litigation against the railroad company. He had his claim on Beynes & Villere, and did not need to go further or to wait. The claim between the brokers was submitted, according to the rules binding them, to the arbitration committee. Whether their award was binding on these parties we need not decide, because the amount of the actual damages has been proved on the trial. On that arbitration Beynes & Villere took the ground that not they, but the Germania Bank, their principal, was responsible. The committee followed a rule alleged to be of the New York Stock Exchange, to the effect that a party to a contract shall not be compelled to accept a principal, other than the broker contracting, unless the name proposed be satisfactory, or be declared at the time of making the offer. This seems to be the common rule, that an agent is liable personally unless at the time he discloses his principal. At any rate, the substitution of the Germania Bank [167]*167as the party against whom Willoz should make his claim would not have benefited the plaintiff. We do not see that there is any conflict as to the amount of damages sustained, although, probably, the question of the amount of damages may not be before us, and therefore we will not pass upon it.
There is nothing, then, to show that Keynes & Yillere, the Germania Bank, and the defendant did not act severally, in good faith, and in strict accordance with instructions received from the immediate principal of each. So doing, each was entitled to be indemnified by the immediate principal for loss sustained in the discharge of the duties of the agency. Howe v. Railroad Co., 37 N. Y. 297. The plaintiff in a letter to defendant placed its objection to pay these damages on the ground that the Germania Bank should have found out before offering the stock for sale whether it could be transferred. Nothing of that kind can be inferred from the instructions, and the finding of the court is that the Germania Bank was not guilty of negligence. It may also be noticed that after defendant had notified plaintiff of the facts, and plaintiff had declined to admit the charge, the defendant in December, 1877, suggested that plaintiff should make any contest it might desire, and offered to put plaintiff in possession of any needed facts. The plaintiff, therefore, had the opportunity of contesting the matter between defendant and the Germania Bank. Certainly defendant was not bound to litigate. And another fact may be noticed; that is, that H. Joseph Budington, who is the plaintiff’s principal, afterwards, in March, 1884, sold these 196 shares for $19,000, a large advance over the price at the time of the transaction in question; so that he is not a loser by the refusal to transfer. The judgment should be reversed, a new trial granted, costs to abide the event.
Landon, J., concurs.