35 N.Y.S. 17 | N.Y. Sup. Ct. | 1895
Dissenting Opinion
(dissenting). I do not concur in the conclusion of Judge PRATT that the assignment is void because made to the president of the corporation. The execution of the assignment was authorized by a resolution of the trustees, and the president empowered to select the assignee. Assuming that the selection of himself by the president as the assignee was not within the terms of the resolution, its execution of the assignment was not a void act. The president was not prohibited from being assignee by any rule of law or by-law of the corporation. If not authorized by the resolution, his selection was a thing the trustees could ratify, and, as they do not question the validity of his selection, I do not think creditors can successfully assail the assignment on that ground. The deed may have been voidable at the option of the corporation, but it certainly was not void. Neither do I agree with the contention that the assignment is void for the reason that the certificate
Lead Opinion
The assignment under which plaintiff claims is sought to be sustained by virtue of a resolution of the directors of a corporation, by which they authorized their president to nominate and execute to a proper person an assignment of all the property of the corporation. Thereafter he executed in the name of the corporation an instrument which purported to convey to himself as assignee' the property which was afterwards attached by the defendants. The validity of the instrument is attacked on various grounds, one of which is that under the resolution the president could not lawfully execute a conveyance to himself. It is also suggested that the power to select an assignee was not one which the directors could delegate. We think it clear that in the selection of an assignee the corporation had a right to the unbiased discretion of its officer. That could not be had when he occupied the antagonistic positions of grantee and the active agent of the grantor. What would have been the result had the resolution left nothing to his discretion, and designated the president as the assignee, we need not discuss. In that case it might be agreed that in substance the assignment was the work of the directors, and the president but a ministerial agent. But in the present case the assignment was the work of the president. WTe think the effort to vest the title in himself failed. It follows that the attachments were a valid levy on the property of the corporation, and that the order appealed from must be affirmed, with costs.
DYKMÁN, J., concurs.