152 N.E. 271 | NY | 1926
This action has been brought to dissolve a corporation for the reason that it has suspended its ordinary and lawful business for at least one year. Pursuant to sections 101 and 102 of the General Corporations Law this kind of an action can only be brought by a stockholder after the Attorney-General of the State has failed to bring it, and leave has been granted to the stockholder by the court. Without deciding whether or not the plaintiff is barred from maintaining this action by reason of his failure to comply with this procedure, we pass to a consideration of the main or substantial point in the case.
In 1889 defendant was incorporated in the State of New York under the name of the American Brewing Company of Rochester, N Y, for the purpose of the manufacture and sale of beer and ale. In August of 1920 it altered its certificate of incorporation so as *493 to include within its purposes and powers the manufacture and sale of foods and drinks and all their ingredients, including the dealing in refrigeration. The alteration of its charter was permitted by section 18, now section 35, of the Stock Corporation Law (Cons. Laws, ch. 59). The power of the Legislature to alter from time to time charters of corporation was especially reserved by article VIII of the Constitution of the State of New York, in force and effect when this company was incorporated.
For the purpose of this appeal we assume that such reserve power, and amendments under it, could not go to the extent of making radical and fundamental changes in charters and in the relationship of stockholders to the corporation in which they have invested their money. (New York Central H.R.R. Co. v.Williams,
The question, therefore, arises upon this record whether or not the changes or alterations made in August of 1920 of the charter of the American Brewing Company were fundamental. The case has been argued upon the theory that a change from manufacturing ales and beer to the manufacturing of a beverage containing one-half of one per cent of alcohol, and authorized by the Volstead Act, is such a radical and fundamental change. We do not think so. Whether the corporation could carry on the manufacture and sale of any and all kinds of food supplies we cannot and do not determine. There is nothing in the record to show what the corporation is manufacturing and selling under its extended powers or those relating to the manufacture and sale of food. There are food products of a liquid nature, the manufacture of which might not be a departure from the general character of the business of the corporation, or *494 constitute a radical and fundamental change from its original purpose.
As it does not appear that the corporation is manufacturing anything but beverages allowed by law or products of like nature the judgment below should be affirmed, with costs.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE and LEHMAN, JJ., concur; ANDREWS, J., absent.
Judgment affirmed. *495
