Miller v. Barlow

Ingraham, J.:

This action was before this court upon a former appeal from an interlocutory judgment overruling a demurrer to the complaint interposed by the defendants, other than the present appellant (78 App. Div. 331). The demurrer in that case was upon the ground that there was a defect of parties plaintiff and defendant. The objection that the rights of a foreign corporation against its directors-'could not be enforced in an action brought by a director was not taken, and ’the only question discussed in the opinion was as to-whether there was a defect of parties plaintiff or defendant. In this case the appellant demurred to the complaint upon the ground, among others, that it did not state facts sufficient to constitute a cause of action, and the sufficiency of this complaint is the question now to be determined.

The complaint alleges that the defendant, the Hondur-American Cattle, Agricultural and Colonization Company, a corporation organized under the laws of the State of West Virginia, does business in the State of New York, and has, and ever 'since its organization has had, its principal place of business and office for the transfer of stock in the county of New York; that on or about January 12, 1900, the plaintiff -was duly elected to the office of director of said company, accepted said office, and has ever since continued te be ,a director thereof; that the defendants, other than the corporation, were, prior to September 20,1898, duly elected directors of said company, and continued to be and to act as directors until May 16, 1899. There is no allegation that plaintiff is a stockholder or that the corporation has refused to enforce this liability of its directors, or is now in control of the defendants. The complaint then alleges that a contract was entered into between the corporation and the firm of Berndes & Co., under which said firm paid to the corporation the sum of $25,000, to be held as a special or trust fund to be used as specified in the contract; that the defendants, other than the corporation, intending to defraud the said company, its creditors and stockholders, and for the purpose of enriching themselves, and in violation of said agreement and their duty as such directors, paid out the said $25,000 in violation of said contract and of their duty as directors, and in violation of the law of the State of West Virginia, under which the corporation was organized. And the complaint asks judgment that the defendants, other than the corporation, may be compelled to account for their official conduct in the management and disposition of the funds and property of said company, and that they may be compelled to pay to the said corporation, or to the receiver thereof that may be appointed in this action, the sum that may be found to be due from the said defendants upon such accounting, and any money and the value of any property which the said defendants have acquired to themselves or transferred to others, or lost or wasted by a violation of their duties as such directors and officers, or otherwise, and that a receiver of the property be appointed.

The action is one allowed by subdivisions 1 and 2 of section 1781 of the Code of Civil Procedure, and is brought by the plaintiff as a director against the other directors of the corporation under section 1782. These sections are contained in article 2 of title 2 of chapter 15 of the Code, and the article is headed, “ Judicial Supervision of a Corporation, and of the Officers and Members thereof.” Section 1781 provides that an action “ may be maintained against one or more trustees, directors, managers or other officers of a corporation to procure a judgment for the following purposes, or so much thereof as the case requires.” Subdivision 1 provides for an action to compel the defendants to account for their official conduct in the management and disposition of the funds and property committed to their charge; subdivision 2, to compel the defendants to pay to the corporation which they represent, or to its creditors, any money and the value of any property which they have acquired to themselves, or transferred to others, or lost or wasted, by a violation of their duties; subdivision 3, to suspend a defendant from exercising his office, where it appears that he has abused his trust; subdivision 4, to remove a defendant from his office, upon proof' or conviction of misconduct, and directing a new election to be held by the body or board, duly authorized to hold the same, in order to supply the vacancy created by the removal, or where there is no such body or board, or where all the members thereof are removed, directing the removal to be reported to the Governor, who may, with the advice and consent of the Senate, fill the vacancies; subdivision 5, to set aside an alienation of property, made by one or more trustees, directors, managers or other officers of a corporation, contrary to a provision of law, or for a purpose foreign to the lawful business and objects of the corporation, where the alienee knew the purpose of the alienation; and subdivision <3, to restrain and prevent such an alienation, where it is threatened.

This section of the Code was taken from the Revised Statutes (2 R. S. 462, § 33). The article which contains that section is entitled “ Of Proceedings against Corporations, in Equity.” And. section 33 gives to the Chancellor jurisdiction over directors, managers and other trustees and officers of corporations. This section of the Revised Statutes was made section 1781 of the Code -of Civil Procedure without substantial change. Section 35 of the Revised Statutes (2 R. S. 463) was re-enacted, without substantial change, as section 1782 of the Code, and it has been held that sections 1781 and 1782 of the Code confer no broader authority to commence suits in behalf of the" People than was conferred by the ' sections of the Revised Statutes. (People v. Lowe, 117 N. Y. 175.) These sections of the Revised Statutes have been applied only to corporations organized under the laws of this State. In fact, in no ease to which our attention has been called has it ever been claimed that these provisions apply to foreign corporations. Title 4 of chapter 8 of part 3 of the Revised Statutes relates to proceedings by and against corporations and public bodies, and article 1 provides for the maintenance by or against foreign corporations of actions at law in the courts of this State. Article 2 of the title applies to proceedings against corporations in equity. It is clear, I think, that this article relates solely to proceedings against domestic corporations.

Section 31, which is in article 2, provides that “ upon a bill being filed by the Attorney-General in the Court of Chancery, the Chancellor shall have power to restrain by injunction any corporation from assuming or exercising any franchise, liberty or privilege, or transacting any business, not allowed by the charter of such corporation ; and in the same manner, to restrain any individuals from exercising any corporate rights, privileges or franchises not granted to them by any law of this State.” (2 R. S. 462.) Section 38, which is in the same article, was also intended to apply to domestic corporations, for it is there provided that “ whenever any incorporated company shall have remained insolvent for one whole year; or for one year shall have neglected or refused to pay and discharge its notes or other evidences of debt; or for one year shall have suspended the ordinary and lawful business of such corporation ; it shall be deemed to have surrendered the rights, privileges and franchises granted by any act of incorporation, or acquired under the laws of this State, and shall be adjudged to be dissolved.” (2 R S. 463.)

It is evident that neither the Legislature nor the courts of this State would have the power to dissolve a corporation organized under the laws of another State (Merrick v. Van Santvoord, 34 N. Y. 208, 222); and the same may be said as to sections 39 and 45 (2 R. S. 463, 464) which specify generally any corporation, but which were clearly intended to apply only to domestic corporations. Article 3 of the title provided for the voluntary dissolution of corporations, and although the provisions of section 58, which is in that article (2 R. S. 467), are general, applying to any corporation, it is clear that the article could only apply to domestic corporations. Thus, tills whole title relates solely to domestic corporations, except so far as in article 1 a foreign corporation is expressly included, and the relief authorized by article 2 and the nature of the proceedings authorized would seem to establish conclusively that the provisions of the article relate to domestic corporations only; and this conclusion is enforced by the revisers’ notes to this article. (See 5 N. Y. Stat. at Large [Edm. ed.] 484, 485.)

It has been suggested, however, that the effect of this statute was extended to foreign corporations by chapter 151 of the Laws of 1870, re-enacted as sections 1809, 1810, 1811 and 1812 of the Code of ' Civil Procedure. That act ' is entitled “ An act to regulate proceedings against corporations by injunction and otherwise.” It does, what the title of the act specifies, regulates the proceedings against corporations in equity and restrains the court from granting injunctions removing directors and officers and appointing receivers except in civil actions upon proper notice. Section 5 provides that the provisions of the act “ shall extend and apply to all corporations and joint-stock associations, created or existing by the Jaws of this or of any other State or Government, doing business within this State, or having a business or fiscal agency or an agency for the transfer of its stock therein, and to the directors, trustees, managers and other officers of such foreign corporations or joint-stock associations.” As there was no provision of this act which gave any cause of action against corporations, the provision that the act should apply to foreign corporations would not have the effect of authorizing actions against foreign corporations which were before, unauthorized. Thus the fact that a receiver of the property of a corporation could be appointed in a civil action brought by the Attorney-General for the dissolution of the corporation would not be considered as authorizing the Attorney-General to commence proceedings to dissolve a foreign corporation, for it is very evident that the courts of this State would have no power to decree the dissolution of such a corporation; and the provision that the court could appoint a receiver in a civil action specifically mentioned in title 4, chapter 8, part 3 of the Revised Statutes, would not authorize the maintenance of any action therein mentioned against a foreign corporation. (See Laws of 1870, chap. 151, § 3, subds. 3, 5.)

The provisions of the act of 1870 were re-enacted as sections 1809,1810,1811 and 1812 of the Code of Civil Procedure. Section 1812 is a re-enactment of section 5 of the act of 1870, bnt it certainly was not intended to give to the Supreme Court of the State of Hew York jurisdiction to remove from office, a trustee, director or other officer of á foreign corporation, because section 1811 of the Code provided that a trustee, director or other officer of a corporation should not be suspended of removed from office by a •court or judge otherwise than by the final judgment of a competent •court in an action brought by the Attorney-General, as prescribed in section 1781 of the Code. There is nothing in either of the three sections, which by section 1812 are made applicable to foreign •corporations, that gives a cause of action. These sections, merely following the provisions of the act of 1870, restrict the court in certain actions against corporations generally, and these restrictions are made applicable by section 1812 to actions against foreign as ivell as domestic corporations.

We think, therefore, that sections 1781 and 1782 of the Code apply only to domestic corporations, and that no action can be brought under the provisions of those sections against a foreign corporation ; and as the sole right of the plaintiff as a director of this foreign corporation to maintain this action depends upon the provisions of section 1782 of the Code, the objection taken by this-•defendant .that no cause of action as against these defendants is alleged must be sustained. ■

The question here presented relates solely to the right of the plaintiff to maintain this action. The right of a foreign corporation to sue its defaulting directors or officers, or the right of a stockholder suing on behalf of himself and all other stockholders to enforce such a right on behalf of the corporation Avhen it neglects and refuses to enforce it, is not presented. Such a cause of action existed before the Revised Statutes. (Robinson v. Smith, 3 Paige, 222.)

As the right of the plaintiff as a director of the corporation to maintain this action depends upon a statute which, we think, relates solely to domestic corporations, it follows that the action cannot be sustained.

The judgment appealed from should, therefore, be reversed with costs, and the demurrer sustained, with costs, with leave to plaintiff to amend the complaint upon payment of costs in this court and in the court below.

Van Brunt, P. J., and Laughlin, J., concurred; Patterson and Hatch, JJ., dissented.