182 A.D. 43 | N.Y. App. Div. | 1918
The complaint in this action indicates a suit in equity. The only relief which could be based on it would be a judgment in equity directing that the company should divide all its profits among the stockholders. Whether the terms of the contract and constating instruments warrant such a judgment will be considered later. But if the allegations of the complaint are proper to a suit in equity, the judgment is that of an action at law. Nowhere in the complaint is there any allegation of an express promise on the part of the defendants, binding them jointly, to pay to the plaintiff an amount
But I think that the action cannot be maintained in any form. It may be that ah the stockholders in a private corporation can contract among themselves and with the company to control the action of directors in managing the affairs of the company, so long as such control violates no law and does not impair the rights of creditors (Kassel v. Empire Tinware Co., 178 App. Div. 176, and cases there cited; Park v. Grant Locomotive Works, 40 N. J. Eq. 114; affd. on opinion, 45 id. 244), and that a court of equity has power to compel the declaration of a dividend. (Hiscock v. Lacy, 9 Misc. Rep. 578; 7 R. C. L., title “Corporations,” §269.) That power has usually been exercised only to prevent directors from violating the trust duty which they owe to stockholders by fraudulently abusing their discretionary power in the declaration of dividends. Here it is claimed that the corporation, by ratifying and adopting the contract between its promoters and corporators, has entirely lost the power, with which it is vested by the law of its organization, to determine in the best interests of the company what part
I think that the contract of April. 1, 1905, and the consequent organization and acts of the company, do not require
The finding of fact numbered XXI, and all the conclusions of law made by the court are reversed. The findings of fact proposed by defendants, numbered XIII, XX, XXIV, XXVI, XXVII, XXVIII, XXIX, XXXI, are found; defendants’ proposed finding of fact numbered XXI, modified to refer to a portion of the corporate notes, is found, and this court finds as a conclusion of law that the directors of the defendant company have the power, acting in good faith, in the interests of the corporation and stockholders, to determine what portion of the profits of the company shall be divided among the stockholders; that the defendants are not hable to the plaintiff for any sum representing his interest in the undivided profits of the company.
The judgment is reversed and the complaint dismissed on its merits, with costs.
Jenks, P. J., Mills, Rich and Kelly, JJ., concurred.
Judgment reversed and complaint dismissed on the merits, with costs.