187 A.D. 425 | N.Y. App. Div. | 1919
Lead Opinion
The Film Amusement Company, Inc., was incorporated under the laws of the State of New York on January 25, 1913, and the purposes of the corporation as stated in the certificate are: “ To own, operate and conduct and manage a theatre or place of amusement; to own, manage, conduct or operate theatrical performances; to do a general theatrical business, either as principal, factor, agent or otherwise.” The capital stock of the corporation was $3,000 and was divided into thirty shares of the par value of $100 each. The petitioner owned ten shares and Nathan Doniger and Jacob Herskowitz each owned ten shares. The corporation since its organization operated a motion picture theatre called the Joyland Theatre at 2078-2080 Third avenue, borough of Manhattan, city of New York. In March, 1914, the company decided to rebuild the theatre and thereupon
Opposing the application of the non-assenting stockholder to have her stock appraised and purchased under the statute,
The respondent says: “ The company owned the same property as before November 20, 1915, all that had been done was to change the method of deriving its income from this property.” This is not correct because before November 20, 1915, the corporation owned all the personal property making up the equipment of the theatre and this was sold. While it is true that both before and after November 20, 1915, the corporation owned the lease, it is to be noted that it sold the theatre that it had erected upon the property. Before the transaction it owned a ground lease, the full equipment of a theatre and so long as the lease lasted it owned a theatre constructed by it on the premises. After the transaction it had no theatre and no equipment.
This corporation was not organized for the purpose of building and selling theatres or for the purpose of erecting buildings for the purpose of leasing same. Its puipose was to own, operate and conduct a theatre or place of amusement. This sale and transfer stripped the corporation of the only property it had which would enable it to carry out the purpose for which it was created, and the sale produced no money which could be used as capital to procure another theatre and carry on the business for which it was organized. This sale, to my mind, is one which clearly entitles the petitioner to the statutory relief, and is embraced in the category of cases described in Matter of Timmis (200 N. Y. 177, 181) as being the occasion for the enactment of the statute. In that case Judge Vann, after citing a number of cases, said:
“ These cases and those which intervened established the law that a corporation cannot sell all its property, or even a part thereof so integral as to be essential for the transaction or its ordinary business, because such a sale is wholly or. partly an act of self-destruction and a practical dissolution without compliance with law.
“The discussion of the subject in the various opinions suggested two evils: (1) The injustice to the bulk of the stockholders from want of power in- a corporation to sell its business or an essential part thereof to another corporation organized for the purpose, frequently from its own membership^*429 on terms deemed advantageous by the holders of a large majority of the stock. (2) The injustice to minority stockholders of requiring them to abandon, change or limit their business if the majority should have the power to direct such a sale. An incidental evil was the power of a dissenting stockholder to compel the majority to buy him out on his own terms in order to secure unanimous consent with no one left to question the transaction.”
It is an obvious injustice to one who has invested in a third of the capital stock of a corporation, organized for the express purpose of operating a theatre or place of amusement, to have the majority stockholders dispose of the only property it has which enables it to conduct a theatre and transform its business into that of a mere landlord or lessor of stores and theatres. In the one case there is the prospect and opportunity of large profits, growing out of the chance of acquiring plays that develop into great popular successes, while in the other the profits are absolutely limited to rents. So far as concerns the business for which this corporation" was organized to perform, after thus stripping itself of its assets it might as well have dissolved. But it is not proposed to dissolve it, but to hold the minority stockholders to their interest in the corporation and to such dividends as may be distributable from rentals. While the Stock Corporation Law permits a corporation upon the consent of two-thirds of its stockholders to dispose of a substantial part of its assets or even of all its assets, when it does so against the protest of the minority it must comply with the conditions prescribed by the statute and buy the minority stock at its appraised^, value. (See Consol. Laws, chap. 59 [Laws of 1909, chap. fill, §§ 16, 17.)
It is next contended by the respondent that, even if the sale was one that required the consent of two-thirds of the stockholders, the sale was ultra vires and void because the consent was not obtained at a stockholders’ meeting. This contention is advanced in face of the fact that, although the meeting was called a directors’ meeting, those who constituted the board either owned or represented every share of stock. Doniger and Herskowitz, two of the directors, owned two-thirds of the stock, and the third director was the husband of the
The sale, at most, was merely voidable. It was neither malum in se nor malum prohibitum. The statute authorized a sale upon the consent of two-thirds of the stockholders. Such consent was given. As a matter of procedure, the consent was required to be obtained at a stockholders’ meeting called upon a specified notice. The object of this requirement is to give notice to dissenting stockholders, so that they will be in a position to protect their rights and apply for an appraisal of then stock within sixty days. It will hardly be contended that a purchaser in good faith, with the written consent of two-thirds of the stockholders, would get no title at all simply because the consent had not been obtained at a meeting duly called. On well-understood principles, the corporation and the assenting stockholders would be estopped from .claiming that the sale was ultra vires and void. (Kent v. Quicksilver Mining Co., 78 N. Y. 159, 185, 186; People v. Ballard, 134 id. 269, 295.) . In the Kent case the court said: “ In the application of the doctrine of ultra vires, it is to be borne in mind that it has two phases: one where the public is concerned; one where the question is between the corporate body and the stockholders in it, or between it and its stockholders, and third parties dealing with it and through it with them. When the public is concerned to restrain a. corporation within the limit of the power given to it by its charter, an assent by the stockholders to the use of unauthorized power by the corporate body will be of no avail. When it is a question of the right of a stockholder to restrain the corporate body within its express or incidental powers, the stockholder may in many cases be denied, on the ground of his express assent or his intelligent though
This transaction was of no public concern; the claim of ultra vires is one merely between the stockholders. In such case the only defect being lack of notice to the dissenting stockholder, through obtaining the consent otherwise than at a stockholders’ meeting, the sale was not void, but was voidable. Certainly, then, the assenting stockholders, who although in control of the corporation failed to call a stockholders’ meeting, and who have been benefited by the sale consummated by them, and upon which they stand, are estopped from pleading ultra vires.
Neither should the petitioner, simply because she has a right to institute an action to set aside the sale, be compelled to resort to that remedy. She is not prosecuting an equitable action, but is pursuing a statutory right. Other than the assenting stockholders, the petitioner was the only one entitled to demand a stockholders’ meeting, called on notice. She elects to waive the meeting and notice and to adopt and stand on the sale. As the sale could only be made by resort to section 16 of the Stock Corporation Law and by obtaining the consent of two-thirds of the stockholders therein provided, it must be held that the sale was made upon the authority of that section. Accordingly, as was said by Judge Vann, in Matter of Timrnis (supra): “ As the appellant availed itself of the privilege conferred by the statute, it must comply with the condition prescribed for the exercise thereof.”
The order should be reversed, with ten dollars costs and
Clarke, P. J., and Laughlin, J., concurred; Page and Merrell, JJ., dissented.
Dissenting Opinion
Mary Drosnes, an owner of ten shares of stock of the Film Amusement Company, Inc. (this being one-third of the capital stock issued and outstanding), moved the court on petition and affidavits, for the appointment of three persons to appraise the value of her stock and designating the time and place at which the appraisers shall meet and also direct the manner in which payment for said stock be made as provided in section 17 of the Stock Corporation Law (Consol. Laws, chap. 59; Laws of 1909, chap. 61). The petition alleges upon information and belief that a meeting of the stockholders of the said corporation was called to be held at the office of Abram A. Silberberg, attorney for said company, on the 20th day of November, 1915, and was held at that time and place to consider and vote upon a proposition to sell and convey certain of its property, rights and privileges, to wit, the chattels and things at Nos. 2078-2080 Third avenue, borough of Manhattan, and to lease the theatre building occupied by the said corporation to the G. & G. Amusement Corporation, a domestic stock corporation; that the petitioner duly attended said meeting by Louis 0. Drosnes, who has a power of attorney from the petitioner, and that a vote was taken at said meeting upon the proposition to convey said property, rights and privileges of the said Film Amusement Company, Inc., to the G. & G. Amusement Corporation aforesaid, and that two-thirds of the stock voted in favor of the proposition of sale or conveyance, and after the declaration of the result of the vote said Louis 0. Drosnes, in behalf of the petitioner, protested at said meeting against the proposed sale, and then and there demanded payment for the petitioner’s stock; that prior to making the petition and within twenty days after the date of said meeting the petitioner caused to be served upon the corporation a written notice, signed by her, objecting to the proposed sale and demanding payment for said stock; that sixty days have
Section 16 of the Stock Corporation Law, so far as material to this case, provides: “A stock corporation, * * * with the consent of two-thirds of its stock, may sell and convey its property, rights, privileges and franchises, or any interest therein or any part thereof to a domestic corporation, engaged in a business of the same general character, * * *. Before such sale or conveyance shall be made such consent shall be obtained at a meeting of the stockholders called upon like notice as that required for an annual meeting.”
I cannot agree with Mr. Justice Shearn that this require
It is clear that the relief can only be granted where a meeting of stockholders has been held pursuant to section 16, and that the dissenting stockholder has the right to invoke the remedy provided in section 17. For a meeting of stockholders pursuant to section 16 is a condition precedent to section 17 becoming effective. Matter of Timmis (200 N. Y. 177), relied upon by Mr. Justice Shearn, is not an authority to the contrary. In that case a meeting of stockholders was held pursuant to notice, and the resolution authorizing the sale was adopted by the votes of the holders of more than two-thirds of the capital stock. The appellant claimed that as no specific mention was made in the notice that the meeting was held pursuant to section 16, no right to invoke the remedy under section 17 arose. The court said: “ The sale in question would not be valid without resorting to section sixteen, and by resorting to that section the appellant opened the door for the respondent to enter and demand his rights under section seventeen. The claim that the earlier section was not invoked by specific mention in the notice calling a meeting of stockholders to authorize the sale, is met by the statement therein that ‘ under the charter of the. corporation the calendar department cannot be transferred to a separate corporation without the authorization of the holders of two-thirds of the capital stock.’ ” (p. 183). This is far from authorizing a stockholder to waive the requirement of notice and a meeting of stockholders, and~claiming the benefit of section 17, when
There is a fundamental distinction between the powers of directors acting at a directors’ meeting and even the same persons acting as stockholders in a stockholders’ meeting.
The distinction is not a mere technicality that may be disregarded. Where powers are conferred on directors they must be exercised in meetings of directors and cannot be exercised by stockholders. And where powers are to be exercised by stockholders at stockholders’ meetings, the directors cannot assume those powers and discharge them at a directors’ meeting, These distinctions are declared by law and are not a mere matter of nomenclature, as my brother Shearn seems to assume, when he states: “This contention is advanced in face of the fact that, although the meeting was called a directors’ meeting, those who constituted the board either owned or represented every share of stock.”
The Legislature has declared that a sale may be made when authorized by a two-thirds vote of the stock at a stockholders’ meeting called for that purpose in a specified manner, and when that is done a non-assenting stockholder by complying with section 17 may require the corporation to purchase his stock at an appraised price. The courts have no power to amend this statute and substitute provisions that we assume are as good or better, nor should we attempt to do so on the theory that we are doing substantial justice in a particular case. The petitioner failed to show that she was entitled to the relief demanded and the motion was properly denied.
The order should be affirmed, with costs, as on an appeal' from a judgment.
Merrell, J., concurred.
Order reversed, with ten dollars costs and disbursements, and petition granted, with ten dollars costs and costs of the proceeding.