14 Wend. 20 | N.Y. Sup. Ct. | 1835
By the Court,
The first section of the act creates the applicants for the charter, and such other persons as then are or may thereafter be associated with them, a body corporate and politic in prcesenti, without any condition precedent to be performed by them. The 5th section limits the capital to $350,000, which, by a subsequent act, is extended to $550,000, to be divided into shares of $50 each ; and authorizes the directors to demand from the stockholders all sums of money by them subscribed, at such time and in such proportions as they shall see fit. The promise of the defendant and the other subscribers, although it is in form to take the shares subscribed by them respectively, is undoubtedly (when taken in connection with what precedes it, and with the act of incorporation, which is there referred to and in part recited) a promise, not only to take the shares, but to pay for them—to take them upon the terms and conditions set forth in the subscription paper ; and the corporation could, undoubtedly, in the appropriate form of action, and upon a declaration containing the necessary averments, have enforced payment of the subscription price of the shares from the subscribers. In the case of The Goshen and Minisink Turnpike Road v. Hurtin, 9 Johns. R. 217, the general doctrine was established, that an action would lie against a stockholder of a turnpike corporation, at the suit of the corporation, on his promise in writing to pay for the shares for which he had subscribed ; and the decision of the court of errors, in Jenkins v. The Union Turnpike Company, 1 Caines' Cases in Error, 86, was not considered as conflicting with that opinion.
The other grounds upon which the defendant objected to the plaintiff’s recovery, and moved for a nonsuit, were also properly overruled. The corporation had a right to purchase the land from the plaintiff, by which the debt to him accrued. They are not restricted by their charter to the purchase of the mere thread of the canal. In this case the canal was laid through the centre of the land purchased from the plaintiff, destroying his dwelling house. A mere passage for the canal, could not,under such circumstances, be expected to be purchased, and a reasonable discretion was vested in the corporation, which, in this case, certainly does not appear to have been abused. The 4th section of the act seems to contemplate the possession by the corporation of real estate beyond the absolute necessities of the company, for the mere purpose of making a canal; and from the very nature of the case, it must have been foreseen that the precise quantity required, without any excess, could not probably be obtained.
Whether the manner of distributing or dividing this excess among the stockholders, as set forth in the project of the corporation, was lawful and proper or not, does not appear to me to be material. Admitting it to be unlawful, it would not render the subscription of the stockholders void. The property would still belong to the company, and might be divided or disposed of in any other lawful manner. It did not work a forfeiture, and the defendant, I apprehend, cannot, as against the plaintiff, avail himself of any merely unlawful act of the corporation, either designed or fully consummated.
On the whole, I think the judgment of the superior court should be affirmed.