People v. Troy House Co.

By the Qourt, Hogeboom, J.

The plaintiffs rely upon three grounds to maintain the judgment of ouster and dissolution granted in this action. 1. That, the privileges and franchises exercised by the defendant were never conferred upon it by law, and especially not by the act under which the defendant was incorporated. 2. That if those privileges and franchises were ever conferred they have been forfeited by non-user. 3. That the capital of the defendant has never been paid in in moneys as required by the act of incorporation.

1. The defendant claims title to the privileges arid franchises which it has exercised, under the provisions of the act entitled “An act to authorize the formation of corporations for the erection of buildings,” passed April 5, 1853. In section 2 of the articles of association it is declared that “The object for which this company is formed is the purchasing, holding, leasing and conveying of real and personal estate and the erection and management of buildings for the purposes of a hotel, and for stores and shops, in the city of Troy.” It is found by the court below that the' defendant has never engaged in the erection of buildings, otherwise than as stated in the findings of the court, and which consist substantially in this: a former voluntary association had been engaged in improving and adding to a building already erected, used for a hotel and stores, and erecting a new one story building for a bar and reading room connected with such hotel. The defendant, which succeeded to the ownership of the property formerly held by such voluntary association, continued and completed several of the improvements previously commenced, and made other extensive repairs, alterations and improvements upon the property formerly held by the voluntary associates, and also after their organization purchased, held managed and leased the property in question for the purposes of a hotel and stores, in the city of Troy. The question is Whether under these circumstances this was a company formed for the erection of buildings, within the meaning of the statute before quoted. I am inclined to think it was riot, for the following among other reasons: (1.) The company authorized by' the act of 1853 must be one “for the erection of buildings ;” the fair meaning of which is, engaged or to be engaged in the business of erecting buildings—a building company or association. It may be that they may erect buildings on their own property, though I think the leading object of the association must not be the mere purchase and improvement of real estate and a subordinate and incidental object the erection of buildings thereon as one of the modes of such improvement. This object was more directly designed to be accomplished by an act passed on the 10th of April, 1851," chapter 122, which authorizes the formation of an incorporated company “for the purpose of accumulating a fund for the purchase of real estate, the erection of buildings, or the making of other improvements on lands, or to pay off incumbrances thereon, or to aid its members in acquiring real estate, making inrprovements thereon, and removing incumbrances therefrom.” (3 N. Y. Statutes at Large, 778.) The leading object of the company under the act of 1853" must be, I think, to carry on the business of erecting buildings for themselves or others, and not to confine themselves, as the primary and sole purpose of their organization, to the erection or improvement of a single building upon a single property of their own, for its more convenient and lucrative development and use.

It is true the 2d section of the act in question declares that “they shall by their corporate name be capable in law of purchasing, holding, leasing and conveying any real and personal estate whatever which may be necessary to enable the said company to carry on their operations named in such certificatebut this is incidental to the main purpose of their organization, and comes under the head not of leading and primary objects .of the incorporation but of means necessary or proper to carry into effect powers specifically granted.

(2.) The company in question, -as I understand the pleadings of the court, has never erected any buildings, but at most only a single building, and has not erected, but only altered and improved, that one; has never devoted itself to the business of erecting buildings, but only to the object of maldng improvements upon a single building, and holding, managing and leasing the same as its property, under cover of corporate powers, for the purpose of accomplishing these latter objects with greater convenience and facility and less personal liability.

2. The complaint not only alleges that the privileges and franchises exercised by the defendant were never conferred upon it by law, but that it has never exercised the privileges or franchises actually conferred, to wit, those of erecting buildings. If the conclusion already intimated be correct, to wit, that the franchises exercised by the defendant were not such as were contemplated by the act incorporating companies of this description, then, inasmuch as the court below found that it exercised no other than those stated in its findings, it would seem to follow that there has been no user of the powers conferred. Perhaps this would bring the case within § 7, of the title of the revised statutes concerning the general powers, privileges and liabilities of corporations, (1 N. Y. Statutes at Large, 557,) which provides that “if any corporation hereafter created by the legislature shall not organize and. commence the transaction of its business within one year from the • date of its incorporation, its corporate jjowers shall cease.” Perhaps the true construction of this sectioii would refer the business here spoken of to such as it might laiufully do under the act of incorporation; and if so, then, as it has never done any business of that description, the section would apply, and the decision of the court below would be sustainable on that ground. This point, however, is -of minor consequence, as it is entirely dependent upon the conclusion arrived at under the first point. If that is not tenable, then this also falls to the ground.

There is another section, (1 N. Y. Stat. at Large, 560,) which provides that a corporation shall be deemed to have surrendered its rights, privileges and franchises, and shall be dissolved, whenever it “shall for one year have suspended the ordinary business of such incorporation/' 1 think this section proceeds upon the idea that it has once been in the exercise of its ordinary (authorized) business; for it can scarcely be said to have suspended such business unless it has at some time exercised it." Moreover there does not seem to be any allegation in the complaint pertinent to such a view of the case, and the decision made, probably proceeded upon the section previously quoted.

3. The remaining question arises under sections 10 and 14 of the act of 1853. Section 10 provides that “the capital stock so fixed and limited (by the articles of association) shall all be paid in, at least one half thereof within one year, and the remainder thereof within two years, from the incorporation of said company, or such corporation shall be dissolved.” Section 14 provides that “nothing but money shall be considered as payment of any part of the capital stock.”

These are very plain provisions, and admit, it seems to me, of but one construction. The capital stock must be paid in within two y.ears; and it must be paid in money. These provisions have not been complied with, and the statute with equal plainness declares the consequence; the corporation shall be dissolved.

I see no satisfactory answer which can be given to these provisions. We have heretofore held under the law of limited partnership which requires that the capital contributed by the special partner shall be paid in cash, that the statute was imperative, and must be strictly obeyed. (Haviland v. Chace, 39 Barb. 283. Also MSS. opinion in same case.) The principle of that case applies to this. The language is not ambiguous, and the clear mandate of the legislature must be followed. It is not enough to say that something equivalent to this has been done—that property of equal value with the prescribed amount of money has been contributed. This always raises the question whether the proposed substitute for money is of equal value with, the money actually required to make up the capital stock. In this case it does not appear to have been, though bad faith is not imputed. Whenever a substitute for money is tolerated, it is difficult to see why any such substitute which can come under the denomination of property may not be employed, and it necessarily leads to a troublesome examination to ascertain the true value of the proposed substitute; and it leads also, very often, to a doubtful and unsatisfactory result. The statute has foreclosed any such device, or transaction. It intended to give to the creditors of such an incorporation such security as might result from the original contribution of the capital in cash—whatever might be done with it afterwards. Persons interested in the credit and solvency of the corporation, whether as creditors or stockholders, are entitled to this degree of protection, to wit, that the capital shall be originally paid in in money; and I know of no authority for dispensing with this plain provision of the charter.

On this ground, if on no other, the decision of the court below can safely stand, and therefore, as it seems to me, its judgment should be affirmed with costs.

The case also comes here on appeal from the order allowing this fiction to stand in its present form, and refusing to confine its operation and effect to the question whether the privileges and franchises exercised were within the grant of power contained in the charter, or rather refusing to exclude from the issue the ground of forfeiture or dissolution arising out of the non-payment of the capital in cash. And it is further suggested that, independent of the appeal, this court may rightfully control, and should do so in this case, the proceedings so far as to restrict the grounds of forfeiture as above mentioned. I do not think this court should interfere on any of these grounds. It is doubtful whether the appeal comes within any of the recognized cases for such relief prescribed by law; and whether it is hot a case of discretion resting in the judge who granted the order, in a matter of practice and pertaining to the mere conduct of the suit, and not in any degree to the merits. Whatever may be our right to interfere, either with or without an appeal, I do not think it should he exercised. If the plaintiffs are right, there are three grounds of forfeiture or of ouster on which the action is maintainable, and we are not, I think, allowed to say that the authorization of these proceedings contravenes any principle of equity or of public policy. The parties must be left to their legal rights and to such relief as is accessible to them by an appeal to the legislature, or by a reorganization of the corporation upon a more stable basis.

[Albahy Geheral Term, December 4, 1865.

The order appealed from must he affirmed, and the motion for further relief denied, with $10 costs.

Bogeboom, Peokhcm and Ingalls, Justices.]