36 How. Pr. 105 | N.Y. Sup. Ct. | 1864
The following is the opinion given:
There is no statute or by-law declaring the mode in which the election of trustees for this company shall be conducted; and it was conceded by the counsel on the argument that in such case the stockholders should proceed on the day of election, as they did in this case, by appointing a chairman, who should conduct the election, receive the votes and declare the result.
In this the counsel on both sides agree. I shall therefore assume, under this concession, that the course adopted, to wit., the selection of a chairman to conduct the election, was well enough, and proceed to examine the case with a view to determine which of the two chairmen who assumed to act must be deemed to have been properly and duly chosen. This it was claimed by the defendant’s counsel on
It is urged that if the election conducted by Wilson be sanctioned, the affairs of the company will be managed by three persons elected by a minority of the votes authorized by law to be cast. This is denied as a matter of fact by the minority counsel. But why did not the contestants vote or offer to vote at the election ? They had the opportunity. Not having done so, they must be deemed to have waived such right Judge Bronson remarks, In the matter of the Union Insurance Company (22 Wend. 591, on page 599), that when an elector or stockholder wholly omits to vote, he virtually consents that the election shall be made by those who choose to exercise the privilege; and he cannot after-wards object that they have selected officers whom he does not approve.
. On the argument, I was inclined to set aside both elections; but I can find no ground of just complaint against the proceedings at the election over which Wilson presided. It is not enough for the contestants now to say that they did not vote; they could have done so. They factiously refused to vote, and are not now permitted to urge their own willful delinquency as a ground of relief.
I have not deemed it necessary to determine the questions of fact raised by the papers. If found for the contestants, the result of the motion would be the same.
It is also insisted by the counsel for the moving parties that neither Bullard, Blood or Buchanan had any right to vote, nor Parks, except as to ten shares, and further, that neither Blood or Buchanan aré eligible to the office of trustee. But I do not deem it necessary to examine these questions. My views, above expressed, if sound, renders such examination unnecessary.
The motion must be granted declaring the election of Parks, Buchanan and Blood irregular, illegal and void, and establishing the election of Wilson, Comstock and Strever as
Buchanan and his associates appealed to the general term.
A. Pond, for respondents.
E. F. Bullard, for appellants.
The order appealed from was affirmed.
Bo further opinion was written.