214 A.D. 668 | N.Y. App. Div. | 1925
A contract was entered into on April 1, 1924, by the parties to the controversy whereby plaintiffs agreed to purchase from the defendant the premises known as No. 1736 East Fifty-first street, Brooklyn. When the deed was tendered on the closing date, title was rejected as unmarketable because:
In 1916, in an action for the foreclosure of a mortgage, through
It is the contention of the plaintiffs, first, that no jurisdiction was acquired of the defendant corporation in the foreclosure action by reason of the service upon its president without the State, in that in the eyes of the law the corporation itself could not be regarded as without the State, and second, that the fact that the Kriner Realty Company and the W. W. Robertson Realty Company, Inc., had two directors in common casts such doubt upon the validity of the title as to warrant its rejection.
The first question resolves itself into whether section 438, subdivision 5, and section 443, subdivision 3, of the Code of Civil Procedure (as amd. by Laws of 1914, chap. 346), in effect at the time when the service was made, which provided for an order directing service by publication “ Where the complaint demands judgment, that the defendant be excluded from a vested or contingent interest in or hen upon, specific real or personal property within the State; or that such an interest or hen in favor of either party be enforced, regulated, defined, or limited; or otherwise affecting the title to such property;” (§ 438, subd. 5) and also provided that “ In the cases specified in subdivision five of section four hundred and thirty-eight the summons may be served without an order, upon a defendant without the State in the same manner as if such service were made within the State, except that a copy of the complaint shall
The remaining objection to defendant’s title, that no consent of stockholders and no proof of solvency of the grantor in the deed of the Kriner Realty Company to the W. W. Robertson Realty Company, Inc., has been furnished, is without merit. No authority is cited holding that the conveyance by one corporation to another where they both have two directors in common, is void or does not convey good title. It has never been attacked or its validity questioned by any one who had the right to do so, and it is only questioned now by a purchaser under contract to purchase from the present holder of the title. No consent of stockholders is required to the ordinary sales by a corporation made in the ordinary course of its business (Matter of Timmis, 200 N. Y. 177, 181), and there is nothing to indicate that the conveyance in question was not an ordinary sale.
It follows that the objections to the defendant’s title are not well taken, and that judgment should be directed for the defendant, with costs.
Present — Kelly, P. J., Rich, Jay cox, Kelby and Young, JJ.
Judgment unanimously directed for defendant on agreed statement of facts, with costs, in accordance with opinion.