If the directors of the defendant corporation had, at the time the contract was made, paid* out of its funds to the Mercantile Credit Guarantee Company the amount for which a recovery has been had, and an action had been brought against them by the defendant corporation to recover such sum, on the ground that the contract was ultra vires and the payment a waste of its funds, I do not see why ■ they would not have been /liable under Gilbert v. Finch (72 App. Div. 38 ; affd., 173 N. Y. 455).
The contract under which payment was made by the directors,in Gilbert v. Finch (supra) was similar to the one here under consideration, except that a gross sum was there paid at the time the contract was made, while here the amount to be paid was to be deter- . mined at the expiration of two years. The object sought to be accomplished by each was the same, viz., the acquisition of' business by the corporation paying the consideration, and in each case it is *699undoubtedly true that by the contract some new business was acquired.
Under the authority, therefore, of Gilbert v. Finch (supra) I am unable to concur in the prevailing opinion that the judgment should be affirmed. I, however, concur in the prevailing opinion in so far as it holds that the trial court did not err in denying defendant’s motion to submit the case to the jury.
Judgment and order affirmed, with costs.