31 N.Y.S. 406 | N.Y. Sup. Ct. | 1894
The facts of this case are not in dispute. As determined by the court, they are as follows: On January 26, 1881, the defendant issued to Delia P. Dueker a certificate for 40 shares of its capital stock, which certificate was as follows:
“Long Island Bank.
“Brooklyn, New York.
"Established under the General Banking Law of the State of New York, Passed April 18th, 1838.
“Associated by Articles Recorded in the Office of the Clerk of the County of Kings, State of New York, June lGth, 1845.
“No.-. 40 Shares.
“Be it known that Delia P. Ducker is entitled to forty shares of the capital stock of the Long Island Bank, of fifty dollars each, and holds the same subject to the conditions and stipulations contained in the articles of association above mentioned, save that the notes of said bank shall be issued subject to the provisions of the constitution and laws of the state of New York now existing, or which may hereafter be enacted, which shares are transferable on the books of the association by the said Delia P. Dueker or her attorney on the surrender of this certificate. In witness whereof the president and cashier of the association have hereto subscribed their hands in the city of Brooklyn, this 20th day of February, A. D. 1881.
“J. Sniffen, Jr., President
“John H. Ditmas, Cashier.”
On December 11, 1882, Mrs. Dueker contracted a loan with the Brooklyn Bank upon her promissory note, and assigned said certificate to said bank as collateral security for the payment thereof. The loan not having been paid, the bank sold said stock to the plaintiff, pursuant to the terms of its contract with Mrs. Dueker, and the plaintiff thereby became vested with such right and title as Mrs. Dueker had thereto. In June, 1893, the plaintiff presented to the defendant the original certificate of stock issued to Mrs. Dueker, with a transfer thereof to himself, and demanded that the. said 40 shares be transferred to him on the books of the defendant, and a new certificate therefor issued to him. At that date Mrs. Dueker was indebted to the defendant in the sum of $2,338.85, and it refused to transfer said shares to the plaintiff unless said debt was paid. The defendant was incorporated in the year 1845, under chapter 260, Laws 1838. The articles of association, which were duly filed in the clerk’s office of Kings county, provided that "no shareholder of the association shall be permitted to transfer his shares, or receive a dividend or interest thereon, who shall owe to the association a debt which shall have become due, until such debt be paid, unless by and with the consent of the board of directors of the association.” In reference to Mrs. Ducker’s indebtedness to the defendant, it appeared that it first began in February, 1881, and, although the particular debt then contracted was subsequently paid,