202 Misc. 279 | N.Y. Sup. Ct. | 1951
The plaintiff here seeks a declaratory judgment to the effect that the defendants have no right to an appraisal and payment for their stock under the proposed plan of recapitalization of the plaintiff corporation.
The plaintiff corporation has a present capital structure consisting of 5,000 shares of common stock having a par value of $5 per share and 2,500 shares of preferred stock with a par value of $100 per share. All voting rights are vested in the common stock. At a special meeting of the stockholders of the corporation held on September 4, 1951, a resolution was adopted to increase the capital stock of the corporation from $275,000 to $550,000. The resolution provided for increasing the common stock to 30,000 shares of a par value of $5 per share and creating a new 6% second preferred stock consisting of 15,000 shares of a par value of $10 per share.
The defendants are common stockholders of the corporation. They received due notice of the meeting and each duly served notice of their objection to the proposed action and each demanded appraisal and payment of their stock as provided by section 38 of the Stock Corporation Law.
On September 18, 1951, the present action was started. Thereafter and on or about the 17th day of October, 1951, the defendants instituted a proceeding pursuant to section 21 of
There is a sharply contested question of law between the parties as to whether the action taken by the corporation gave the defendants any right of appraisal. The question which is first presented for determination here is whether or not this action for a declaratory judgment is a proper means of determining such issue or whether the issue should be left for determination in the pending appraisal proceeding.
By section 473 of the Civil Practice Act, the Supreme Court is given jurisdiction to declare rights and other legal relations on request for such declaration. By rule 212 of the Buies of Civil Practice, the court is empowered to decline to pronounce a declaratory judgment if in the opinion of the court the party should be left to relief by existing forms of action or for other reasons. If the court declines to give relief, it must state the grounds upon which its discretion is so exercised. The use of a declaratory judgment is discretionary but it must serve some practical end in quieting or stabilizing disputed jural relations. It is usually unnecessary where another adequate remedy exists. (James v. Alderton Dock Yards, 256 N. Y. 298.) Discretion may be withheld where existing forms of action are reasonably adequate. (Newburger v. Lubell, 257 N. Y. 383.) Where a genuine controversy exists, the courts have never held that relief should be denied solely for the reason that another remedy is available. (Woollard v. Schaffer Stores Co., 272 N. Y. 304.) A declaratory judgment will not be refused even where another remedy exists provided a genuine controversy exists and the determination will be of assistance and will serve a useful and practical purpose. (Bradford v. County of Suffolk, 257 App. Div. 777, mod. on other grounds 283 N. Y. 503; Kirn v. Noyes, 262 App. Div. 581; Dun & Bradstreet v. City of New York, 276 N. Y. 198.)
There is no dispute but that ordinarily the issue of whether or not a right of appraisal exists may be determined in an appraisal proceeding brought pursuant to section 21 of the Stock Corporation Law. Whether or not such issue may also be determined in the present action for a declaratory judgment calls for an exercise of discretion by the court. The determination of this question is dependent upon whether or not the appraisal proceeding will afford a full and adequate remedy
If it should be determined that the proposed plan of recapitalization gives a right of appraisal to the defendants, the
In view of the particular circumstances here existing, the plaintiff could not be afforded a full and adequate remedy in the appraisal proceeding, and the determination of the disputed question at issue in the pending action would serve a practical and useful purpose in determining the rights of the parties which would permit the plaintiff corporation to chart its future course with a knowledge of its rights and liabilities. For these reasons the court in the exercise of its discretion holds that this is a proper case to invoke the remedy of a declaratory judgment.
The capital structure of the plaintiff corporation as it exists today and as it would be if the proposed change becomes effective, can be shown as follows:
Present Capital Proposed Capital
2,500 shs. 7% Pfd. 2,500 shs. 7% Pfd.
Par $100 .............$250,000 . Par $100 .............$250,000
5,000 shs. common 15,000 shs. 6% Pfd.
Par $5 ............... 25,000 Par $10 .............. 150,000
■-- 30,000 shs. common
$275,000 Par $5 ............... 150,000
$550,000
The proposed change does not in any way affect the present 7% preferred stock. The preferences and the number of authorized shares remain unchanged. There is no change in the present common stock except that the number of authorized shares is increased. The par value and the voting rights remain the same. Defendants make no claim that the increase in the number of shares of the common stock gives any right of appraisal. The proposed recapitalization provides for a new issue of 15,000 shares of second preferred 6% stock and it is the issue of this proposed new stock which defendants claim gives rise to a right of appraisal.
The defendants base their claim for appraisal upon paragraph (a) of subdivision 11 of section 38 of the Stock Corporation Law which gives a right of appraisal if the certificate “ (a) alters or abolishes any preferential right of any outstanding shares having preferences, affecting the holders of such shares adversely ”. It is necessary, therefore, to determine whether the quoted provision of the present certificate of incorporation giving the common stock the right to the assets of the corporation after the payment of the present 7% preferred, constitutes a preferential right in the common stock within the meaning of paragraph (a) of subdivision 11 of section 38 of the Stock Corporation Law.
The answer to this question would seem to be explicit in the language of section 11 of the Stock Corporation Law which provides in part as follows: “ no shares which are entitled to preference in the distribution of dividends or assets shall be designated as common < stock or shares.” If the defendants’ contention is correct, that the quoted provision of the certificate of incorporation conferred a preferential right upon the common stock in the event of the distribution of assets, no corporation having preferred stock could ever issue common stock. In Matter of Silberkraus (250 N. Y. 242, 244), the court in its opinion said: “ A preference is a superiority either in the receipt of dividends or in the distribution of assets upon dissolution. Preferential rights are such rights as attach
It is true that the proposed recapitalization would reduce the assets available for payment of defendants’ stock in the event of dissolution. This would be so both by reason of the creation of the new second preferred stock and by reason of the increase in the number of shares of common stock. Common stockholders suffer a similar disadvantage whenever there is an increase in capitalization. If the proposed new preferred stock had been given priority over both the present 7% preferred and the common, no right of appraisal would have existed even to the holders of the present 7 % preferred stock. (Matter of Kinney, 279 N. Y. 423; Matter of Dresser, 247 N. Y. 553; Matter of Woodruff, 175 Misc. 819, affd. 262 App. Div. 814.) Certainly under such a situation, the holders of the common stock would have had no right of appraisal. No ease has been called to the attention of the court involving a situation such as is here presented where a new second preferred stock has been authorized which, in the event of dissolution, will be entitled to payment after the existing preferred but before the common. However, the result to the common stockholders here is exactly the same as though the proposed new issue had been a first preferred instead of a second preferred. It is simply an increase in capitalization which reduces the amount available for the payment of the common stock in the event of dissolution. This result alone does not constitute a ground for appraisal.
The plaintiff conceded at the trial that the defendant, Clarence H. Peachey, was the owner and holder of 200 shares of common stock standing in his name upon the books of the corporation and represented by certificates 71 and 72, and that the defendant, Eunice E. Peachey, was the owner and holder of ten shares of common stock standing in her name upon the books of the corporation and represented by certificate 39. On the trial, the defendant, Clarence H. Peachey, also offered in evidence certificates 73, 74 and 75 for 100 shares each,
Plaintiff herein is entitled to a judgment declaring that the defendants have no right to an appraisal and payment for their stock under the proposed plan of recapitalization of the plaintiff, together with costs and disbursements. Let judgment enter accordingly.