19 Wend. 635 | N.Y. Sup. Ct. | 1839
By the Court,
The first ground relied on in support of this motion, viz. that the inspectors were not sworn according to the directions of the statute, 1 R. S. 604, § 7, is not in itself sufficient to destroy the election, as was recently held in the case of the Mohawk, and Hudson Rail Road Company, ante, 135.
As to the second objection : This company by its charter is subject to all the restrictions and limitations imposed upon the Jefferson County Mutual Insurance Company. And that corporation is subject to the provisions of the eighteenth chapter of the first part of the revised statutes as far as the same are applicable. Statutes, sess. of 1836, p. 315, § 3, and p. 46, § 14. 2 R. S. 577, 589, 596, § 34. By the section last quoted it is declared that no person shall be chosen or appointed an inspector of an election of directors in a corporation, of which he shall be a director or officer. The act incorporating the Jefferson County Mutual Insurance Company, by its fourth section, disqualifies as inspectors only the directors of the company; and although by a subsequent section it is declared that the corporation shall be subject to the provisions of the 18th chapter of the revised statutes, it is so only so far forth as the same are applicable, and the legislature having in the act incorporating the insurance company limited the disqualification to directors only, the revised statutes in this respect must be deemed inapplicable, and consequently the second ground of the motion fails.
The third ground of the motion is, the keeping open of the polls for a number of days, and then the unexpected
As to the illegal votes; it is said that proxies upon which votes were given were not accompanied by affidavits of the stockholders, as required by § 40 of 2 R. S. 597, and that the names of persons who were permitted to vote by proxy had not stood upon the books of the corporation thirty days previous to the election. There is some difficulty in the application of the provisions of the 18th chapter of the revised statutes to the charter now under consideration, arising out of the more general reference to such provisions, referred to above when considering the second objection raised in this
The decisive answer, however, to the fourth ground of objection urged against this election is, that if all the exceptionable votes given on both sides are rejected, still according to the best estimate that I have been able to make from the papers before me, the seven persons declared to be elected have a clear majority; and this is true also, if we regard every variety of exception taken to the votes. In such a case it is not our practice under this statute, 1 R. S. 603, § 5, which directs a disposition of the case “ as right and justice may appear,” to disturb the election. Vide analogous cases, 7 Cowen, 153, and ante, pp. 35 and 135.
After the most careful examination and consideration which I have been able to bestow upon this case, I am of opinion the motion must be denied.
Motion denied*