I I QJnrnfll Ham irlyonl ffiibtary Q^tft of DE/?N ROBERT S. STEVENS KFN534S^A3"l92'l"""' '■"'™'^ Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022796498 ARNOLD'S GUIDE FOR NEW YORK BUSINESS CORPORAnONS INCLUDING Business Corporations Laws (including Co-operative Corporations), General Corporation Law, Stock Corporation Law, General Associations Law, and all provisions affecting Corporations embraced in the State Constitution, Tax Law, Penal Law, Labor Law, Debtor and Creditor Law, General Business Law, Personal Property Law (including the "Uniform Stock Transfer Act"), Lien Law, Negotiable Instruments Law, Real Property Law, Executive Law, General Construction Law, Civil Practice Act, New York City Court Act, Surrogate's Court Act, Justice Court Act, Municipal Court Code, Code of Criminal Procedure; and TABLES OF FEES, EXPENSES AND FRANCHISE TAXES SEVENTH EDITION— REVISED AND ENLARGED WITH NOTES AND, FORMS BY JOSEPH A. AENOLD OP THE NEW YOKE BAB NEW YORK: BAKBE, VOOEHIS & COMPANY 45-47 John Street 1931 3o«.^ J . Copyright 1901, 1902, 1903, 1904, 1905, 1906, 1907 By Baker, Voorhis & Company Copyright 1909, 1912, 1914, 1917, 1921 By Baker, Voorhis & Company PREFACE TO SEVENTH EDITION This work contains all statutory provisions of general applicability pertaining to New York corporations (in- cluding co-operative corporations) and to corporations organized under the laws of other states entitled to be licensed to do business in the State of New York. All New York business corporations, including mer- cantile, manufacturing, mining and real estate corpora- tions, must be organized under the Business Corpora- tions Law which is given in full in this book, including all amendments in force at the close of the legislative session of 1921. Co-operative corporations may be organized by five or more persons for the purpose of conducting a general producing, manufacturing, warehousing, processing and , cleansing and merchandising business, on the co-opera- jtive plan, in articles of common use, such as farm pro- ducts, food supplies, farm machinery and supplies and articles of domestic and personal use. The provisions of the Business Corporations Law, the General Cor- poration Law and the Stock Corporation Law apply to co-operative corporations, except where such provisions are in conflict with the provisions of the latter. The Stock Corporation Law relates to the powers, rights and management of stock corporations and defines the rights, duties and liabilities of directors, officers and stockholders. Its provisions are applicable to all busi- ness corporations. The General Corporation Law, which governs all cor- porations, was enlarged in 1909 by transferring to it many sections of the Code of Civil Procedure (now superseded by the Civil Practice Act and other Acts) and by the addition of independent statutes. See Con- iv PREFACE TO SEVENTH EDITION solidators' Note, page 30. Most of the sections of the former General Corporation Law and Stock Corporation .Law were renumbered, and not a few were separated into two or more sections. For purposes of ready refer- ence the Comparative Section Tables on pages xxxiv to xxxvi, inclusive, will be found useful. In 1912, section 19 was added to the Stock Corpora- tion Law permitting a stock corporation other than a banking or insurance corporation, to issue stock without nominal or par value. By Chapter 694 of the Laws of 192 1 that section was amended so that provision may be made for the issuance of shares of stock of any one or more classes without nominal or par value. This amend- ment would seem to include preferred stock. On October i, 1921, the Civil Practice Act and other Acts go into effect, superseding the Code of Civil Pro- cedure. This work therefore omits all provisions of the Code of Civil Procedure relating to corporations and includes all sections of the Civil Practice Act pertaining to corporations generally. The New York legislature in 192 1 enacted a so-called "Blue-Sky" Law by adding Article 23-A to the General Business Law covering "fraudulent practices in respect to stocks, bonds and other securities." This article allows the attorney-general to investigate the issuance, sale, promotion, negotiation, advertisement or distribu- tion of any stocks, bonds, notes, evidences of interest or indebtedness or other securities within this State when- ever he believes it to be in the public interest that an investigation should be made; and if upon such investi- gation the attorney-general is of opinion that any per- son, partnerslyp, corporation, company or association is engaged or is about to engage in such fraudulent prac- tices or have violated the penal law in respect of such securities, he may bring an action on behalf of the people of the State of New York to enjoin the continu- ance of such fraudulent practices. The attorney-general may before beginning such an action examine witnesses PREFACE TO SEVENTH EDITION V and require them to produce papers, documents and books concerning such alleged fraudulent practices. Witnesses may be required to appear before a justice of the Supreme Court or a designated referee. Heavy penalties for violation of injunctions or final orders are provided for and the attorney-general may prosecute every party charged with the commission of an indictable oflense concerning such fraudulent practices. The "Uniform Stock Transfer Act," which is now the law in a number of states, was added to the Personal Property Law as sections 162 to 185, inclusive, by Chapter 600 of the Laws of 1913. Section 180 provides that the act "shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it." Since 1901 the rights and powers of New York busi- ness corporations have been greatly amplified, and the stringent liabilities of directors and stockholders have been abolished or lessened. The corporation laws of New York are best adapted to the requirements of capital invested in the state, and render New York a desirable domicile for corporations conducting all or a substantial part of their business therein. Acknowledgment is due to Samuel L Rosenman, Esq., of the New York Bar, for his capable assistance in the preparation of this edition. JOSEPH A. ARNOLD. 22 William Street, New York. October i, 1921. TABLE OF CONTENTS BUSINESS CORPORATIONS LAW. Abticle 1. Short Title. Section 1. Short title 1 Article 2. General Provisions. Section 2. Incorporation. , 2 2a. Incorporating for the purpose of conducting law business, et cetera, prohibited 6 3. Restrictions upon commencement of business 7 4. Reorganization of existing corporations 7 5. Payment of capital stock 8 6. !Full liability corporations 9 7. Consolidation of corporations 10 8. Submission of consolidation agreement to stock- holders 11 9. Powers of consolidated corporations 13 10. Transfer of property of old corporations to consol- idated corporations 14 11. Rights of creditors of old corporations 15 12. District steam corporations 15 13. Examination of meters by agent of district steam corporations 17 14. Entry by agent of district steam corporation to cut off steam 17 15. Water companies 18 16. Improvement corporations; right of condemnation. 19 Article 3. Co-operative Corporations. Section 25. Definition 20 26. Incorporation 21 27. Application of corporate law 21 28. Directors ; officers 21 [vii] Viii TABLE OF CONTENTS PAGE. Section 29. Amendment of certificate 22 30. Stock and stockholders 22 31. Written vote of stockholders 22 32. Subscription of stock in other corporations 23 33. Purchasing business of other corporations or per- sons 23 34. Earnings ; dividends 24 35. Dissolution 25 36. Annual report 25 37. Existing co-operative corporations and associations. 25 38. Corporate name 26 38a. Violation 26 Article 4. Laws Repealed; When to Take Effect. Section 50. Laws repealed 28 51. When to take effect 28 Schedule of laws repealed 28 Section Section 10. 11. 12. 13. GENERAL COEPOEATION LAW. Article 1. Short Title; Classification; Definitions. Short title 31 Classification of corporations 31 Definitions '. 31 Article 2. General Provisions. Qualifications of incorporators 35 Filing and recording certificates of incorporation . . 35 Corporate names 3g Amended and supplemental certificates 37 Lq|t or destroyed certificates 33 Certificate and other papers as evidence; evidence of consolidation go Limitation of powers; provisions of certificate 40 Grant of general powers 45 Enlargement of limitations upon the amount of the property of non-stock corporations 42 Acquisition of additional real property 42 TABLE OF CONTENTS IX PAGE. Section 14. Acquisition, holding and disposition of property without the state 43 15. Certificate of authority of a foreign corporation. . . 44 16. Proof to be filed before granting certificate 45 16a. Certificate of surrender of authority 46 17. Reincorporation of foreign moneyed corporations.. 48 18. Papers to be filed upon reincorporation 48 19. When reincorporation effective and effect thereof. . 49 20. Acquisition of real property in this state by certain foreign corporations 50 21. Acquisition by foreign corporation of real property in this state 50 22. Prohibition of banking powers 50 23. Qualification of members as voters 51 23a. Voting of stock by fiduciaries who disagree 52 24. Cumulative voting 53 25. Voting trust agreements 54 26. Proxies 54 27. Challenges 55 28. Effect of failure to elect directors 56 29. Mode of calling special election of directors 56 30. Mode of conducting special election of directors. . . 57 31. Qualifications of voters and canvass of votes at spe- '. cial election 57 32. Powers of supreme court respecting elections 58 33. Stay of proceedings in actions coUusively brought. 58 34. Quorum of directors and powers of majority 59 35. Directors as trustees in case of dissolution 60 36. Forfeiture for non-user 60 37. Extension of corporate existence 60 38. Revival of corporate existence 62 39. Approval of certificates of extension or revival; when required 63 40. Extension when stock is owned by another corpora- tion 63 41. Effect of extension 63 42. When notice or lapse of time unnecessary 64 43. As to acts of directors '. 64 44. Political contributions prohibited; penalty 65 45. Action by foreign corporation 66 46. Action against foreign corporation 66 47. Action against foreign' corporation by another foreign corporation or non-resident 66 TABLE OF CONTENTS Section 60. 61. 62. 63. 64. 65. 66. Section 70. 71. 72. 73. 74. 75. 76. Article 3. Change of Name. page. Petition by corporation to change name 68 Contents of petition 69 Notice of presentation of petition 69 Order authorizing change 70 When change to take effect 71 Substitution of new name in pending action or pro- ceeding 72 Change of name of business, transportation and membership corporations 72 Akticle 4. Sale of Corporate Seal Property. Application of this article 76 Petition 76 Hearing on application 77 Order to sell, mortgage or lease 77 Insolvent corporation 78 Service of notices 78 Practice in cases not herein provided for 78 Article 5. Judicial Supervision of Corporation and of the Officers and Members Thereof. Section 90. Action against officers of corporation for miscon- duct 79 91. Who may bring such an action 80 91a. Actions against officers by corporation, or receiver or trustee 80 92. Visitatorial power over corporation not affected by this article 81 Article 6. Action for Sequestration, Action for Dissolution and Action to Enforce Individual Liability of Officer and Member of Corpora- timi. Section 100. Action by judgment creditor for sequestration. . . 101. Action to dissolve a corporation 102. Who may bring action to dissolve a corporation. . 103. Temporary injunction in action authorized by this article 84 82 83 83 Section 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. TABLE OF CONTENTS XI PAGE. Temporary receiver 84 Additional powers and duties of temporary receiver 85 Permanent receiver 85 Additional duties and liabilities of permanent re- ceiver 85 Application for appointment of receiver 86 Officers and stockholders may be made parties in action brought by creditor 86 Separate action may be brought against officers and stockholders 87 Proceedings in such actions 87 Distribution of property of corporation by judg- ment in actions under this article 87 Recovery of stock subscriptions 88 Liability of directors and stockholders 88 Effect of this article 88 Entry of judgment and filing certified copies thereof 88 Section 130. 131. 132. 133. 134. 135. 136. Article 7. Action to Annul a Corporation. Action by attorney-general to annul corporation when legislature directs 90 Action by attorney-general to annul corporation by leave of court 90 Notice of application for leave to commence action to annul corporation 91 Jury trial 91 Injunction and receiver in final judgment 91 Temporary injunction 92 riling and publishing judgment 92 Article 8. Action to Dissolve Moneyed Corporation. Section 150. Temporary injunction and receiver in action against moneyed corporation 93 151. Order to show cause why injunction and receiver should not be permanent 94 152. Inventory and appraisal by receiver 94 153. Conversion of assets into cash by receiver 95 154. Employment of counsel by receiver 95 155. Notice to creditors "by receiver 96 XU TABLE OF COKTEITTS PAGE. Section 156. Allowance, rejection and adjustment of claims by receiver 97 157. Final settlement and distribution by receiver.... 97 158. Notice of account and accounting by receiver.... 98 159. Proceedings upon accounting .* 99 160. Claims barred after distribution of assets by re- ceiver 100 161. Application of article 100 Aeticle 9. Proceedings for Voluntary Dissolution of Corporation. Section 170. Petition for voluntary dissolution of corporation. 102 171. Directors or trustees may be required to petition. 103 172. Petition when directors or trustee do not agree. . 103 173. Corporations excepted from two preceding sec- tions 103 174. Contents of petition 104 175. Affidavit to be annexed to petition 105 176. Presentation of petition 105 177. Corporations without stockholders 105 178. Action by court upon petition for dissolution.... 105 179. Publication of order to show cause why corporation should not be dissolved 105 180. Service of order to show cause 106 181. Entering and filing order and papers 106 182. Temporary receiver 106 183. Application for appointment of receiver 107 184. Injunction iqj 185. Referee 2Qg 186. Hearing jOg 187. Decision 208 188. Use of original papers on hearing 108 189. Amending papers jgg 190. Axial order -• no 191. Permanent receiver j^gg 192. Appointment of director, trustee or other officer or stockholder as receiver lin 193. Certain sales, transfers and judgments void 110 194. Omission, defect or default of receiver no 195. Exception of certain corporations no TABLE OF CONTENTS Xlll Article 9-a. Forfeiture of Charter or Bevocation of Certificate of Authority, for Maintaining a Nuisance. PAGE. Section 200. Forfeiture of charter or revocation of certificate of authority of corporations maintaining nui- sances generated in another state Ill 201. Reinstatement 113 202. Application of article 114 Article 10. Dissolution of Stock Corporation without Judicial Proceedings. Section 220. Dissolution of stock corporation before beginning business 115 221. Dissolution of stock corporation before expiration of time limit 116 Article 10-a. Provisions Applicaile to Temporary and Permanent BeceiVers of Corporations. Section 225. Security 119 226. Eemoval or new bond 119 227. Notice to sureties upon accounting. : 120 Article 11. Powers, Duties and lAabilities of Beceivers of Corporation. Section 230. Application of this article 123 231. Eeceiver trustee of property 123 232. Eeeeiver's title to property 123 233. Transfer of assets of corporation to receiver. . . . 123 234. Security of receiver 123 235. Authority of single receiver 124 236. Authority where there is more than one receiver.. 121 237. Surviving receivers 124 238. Oath of receiver 124 239. Greneral powers of receivers 125 240. Power of receiver to institute proceedings to re- cover assets 126 241. Power of receiver in the settlement of controversies 128 242. Power of receiver to employ counsel 130 243. Power of receiver to hold real property 131 XIV TABLE OF CONTENTS PAGE. Section 244. Power of receiver to recover stock subscriptions . . 131 245. Duty of receiver to convert assets into money 131 246. Duty of receiver as to private sales 132 247. Duty of receiver to keep accounts 132 248. Duty of receiver to serve copy of report upon attorney-general and superintendent of banks.. 132 249. Duty of certain receivers to make reports 133 250. Duty of receivers to give notice to creditors 133 361. Delivery of property and payment of debts to receiver after notice 134 252. Penalty for concealing property from receiver . . . 134 253. Duty of receiver to call creditors' meeting 135 254. Proceedings at creditors' meeting 135 255. Deduction of disbursements and commissions by receiver 135 256. Refunding consideration of subsisting contracts.. 135 257. Eetention of funds for subsisting contracts and pending suits 136 258. Payment of debts not due 136 259. Allowance of set-offs 137 260. Penalties recovered by receiver 137 261. Order of payment by receiver 137 261a. Payment of wages by receivers 138 262. Failure to file claim before first dividend 138 263. Second dividend by receiver 138 264. Surplus to stockholders 139 265. Disposition of moneys retained by receiver for suits 139 266. Duty of receiver as to unclaimed dividend 140 267. Effect of failure to file claim before second divi- dend 140 268. Final accounting by receiver 140 269. Notice of final accounting 141 270. Hearing on final accounting 141 271. Reference of final account 141 272. Further accounting 141 273. Removal of receiver 142 274. VAancy 142 275. Renunciation by receiver 142 276. Control of receiver by court 143 277. Commissions and expenses of receiver in voluntary dissolution 244 278. Commissions and expenses of receiver except in voluntary dissolution 14^ TABLE OF CONTENTS XV Article 12. Frovisiona Applicable to Two or More of the Foregoing Proceedings or Actions. PAGE. Section 300. Application of preceding articles to certain cor- porations 145 301. Officers and agents may be compelled to testify in certain actions 14G 302. Injunction staying actions by creditors in certain actions 146 303. Creditors of corporation, may be brought in to prove their claims in certain actions 146 804 When attorney-general must bring certain actions. 147 305. Requisites of injunction against corporations in certain cases 148 306. Appointment of receivers of property of corpora- tions 148 307. Judicial suspension or removal of officer of cor- poration 149 808. Application of the last three sections 149 809. Misnomer not available in action against stock- holder r' 149 310. Appraisal of property of insolvent corporation. . 150 311. Application by attorney-general for removal of re- ceiver and to facilitate closing affairs of receiv- ership 150 312. Service of papers upon attorney-general 151 813. Designation of depositories of funds in order ap- pointing receiver 151 314. Application to the court in certain actions and proceedings 152 315. County wherein action may be brought by attor- ney-general on behalf of the people 152 316. Preferences in actions or proceedings by or against receivers 152 Aeticlb 13. Alteration and Bepeal of Charter of Corporation. Section .^20. Alteration and repeal of charter 153 321. Conflicting corporate laws 153 Xvi TABLE OF CONTENTS Article 14. Laws Sepealed; Construction; When to Take Effect. PAGE. Section 330. Laws repealed ^5* 331. Construction • 1^4 332. When to take effect '. 15* Schedules of laws repealed IS'* STOCK CORPORATION LAW. Article 1. Short Title. Section 1. Short title 169 Article 2. General Provisions. Section 5. Application of article. 170 6. Power to borrow money and mortgage property... 170 7. "Validating corporate mortgages 173 8. Power to guarantee bonds of other corporations.. 175 9. Reorganization upon sale of corporate property and franchises 176 10. Contents of plan or agreement 177 11. Sale of property; possession of receiver and suits against him 179 12. Municipalities may assent to plan of readjustment 179 13. Change of place of business 180 14. Combinations prohibited 181 15. Merger 182 16. Voluntary sale of franchise and property 182 17. Rights of non-consenting stockholders on voluntary sale of franchise and property 183 18. Alterations or extension of business 184 19. Issuance of shares of stock without nominal or par value 185 20. Commencement of business; authorized debts 187 21. Taxation 188 22. In 'ease or reduction of shares or stated capital. . . 189 23. Amount of capital stock and of shares within mean- ing of other laws 190 24. Amendment of certificate of incorporation 191 24a. Liability upon existing obligations 194 24b. Not to be construed as dissolution or re-incorpora- <^io" 194 24c. Tax upon amendment of certificate of incorporation. 195 Section 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. Section 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 62a 63. 64. 65. 66. 67. 68. TABLE OF CONTENTS XVU Article 3. Directors and Officers. PAGE. Directors 197 Change of number of directors 199 When acts of directors void 200 Liability of directors for making unauthorized di- vidends 201 Liability of directors for loans to stockholders. . . . 201 Officers 202 Inspectors and their oath 203 Books to be kept 204 Stock books of foreign corporations 206 Annual report to secretary of state 207 Liability of officers for false certificates, reports or public notices 203 Article 4. Stock and Stockholders. Issue and transfers of stock 210 Transfers of stock by stockholder indebted to cor- poration 211 Purchase of stock of other corporations 211 Subscriptions to stock 212 Time of payment of subscriptions to stock 212 Consideration for issue of stock and bonds 213 Liabilities of stockholders 214 Liabilities of stockholders to laborers, servants or employees 215 Non-liability in certain cases 215 Limitation of stockholder 's liability 216 Partly paid stock 217 Preferred and common stock 217 Increase or reduction of capital stock 218 Issue of stock to employees 219 Notice of meeting to increase or reduce capital " stock 220 Conduct of such meeting; certificate of increase or reduction 221 Change in par value of shares 223 Prohibited transfers to officers or stockholders.... 223 Application to court to order issue of new in place of lost certificate of stock 225 Order of court upon such application 226 XVlll TABLE OF CONTENTS PAGE. Section 69. Financial statement to stockholders 227 70. Liabilities of officers, directors and stockholders of foreign corporations 228 Aeticle 5. Laws Bepealed; When to Take Effect. Section 80. Laws repealed 229 81. When to take effect 229 Schedule of laws repealed 229 GENERAL ASSOCIATIONS LAW. Article 1. Short Title; Definitions. Section 1. Short title 231 2. Definitions 231 Akticle 2. Joint-Stock Associations. Section 3. Contents of articles of association 232 4. Certificate to be filed within sixty days and annually thereafter ; penalty ; evidence 232 5. Dissolution 233 6. Power to take and convey real property 233 7. Changing articles of association 233 8. Proceedings to mortgage, lease or sell real estate .. . 234 9. Receiver of joint-stock association 234 10. Injunction against joint-stock association 234 11. Misnomer of party not available 235 Akticle 3. Action or Proceeding By or Against Unincorporated Associations. Section 12. Ac* on or proceeding by unincorporated association. 236 13. Action or proceeding against unincorporated asso- ciation 236 14. When action not to abate 237 15. Effect of judgment; execution thereupon 237 16. Subsequent action against members 237 17. Article permissive; effect upon statute of limita- tioiis 238 TABLE OF CONTENTS XIX Akticle 4. Laws Repealed; When to Take Effect. PAGE. Section 20. Laws repealed 239 21. When to take effect 239 Schedule of laws repealed 239 TAX LAW PROVISIONS. Local Taxation. Article 1. Taxaile Property and Place of Taxation. Section 1. Short title 243 2. Definitions 243 3. Property liable to taxation 245 4. Exemption from taxation 245 4a. Exemption of intangible personal property 246 6. The assessment of real and personal property 246 7. When property of non-residents is taxable 247 9. Place of taxation of real property 247 10. [Repealed.] 11. Place of taxation of property of corporations 248 12. Taxation of corporate stock 248 Aeticle 2. Mode of Assessment. Section 20. Ascertaining facts for assessment 249 21. Preparation of assessment roll 249 27. Reports of corporations 251 28. Penalty for omission to make statement 252 29. County clerks to furnish data respecting corpora- ' tions 252 34. Assessment of omitted property 253 36. Notice of completion of assessment roll 253 36a. Completion of assessment roll; notice to non-resi- dents 253 37. Hearing of complaints 254 38. Correction and verification of tax-roll 255 39. Filing of roll and notice thereof 255 49. Tax on special franchise not to affect other taxes. . 257 179. Transfer of the powers and duties of the comptrol- ler in relation to the assessment or collection of certain taxes 257 XX TABLE OF CONTENTS State Taxation. Article 9. Corporation Tax. PAGE. Section 180. Organization tax .' 260 181. License tax on foreign corporations 261 182. Franchise tax on corporations 262 183. Certain corporations exempt from tax on capital stock 265 [184-191, inclusive, omitted in this book.] 192. Reports of corporations 266 193. Value of stock to be appraised 267 194. Further requirements as to reports of corporations. 268 195. Powers of tax commission to examine into affairs of corporations 268 196. Notice of statement of tax ; interest 269 197. Payment of tax and penalty for failure 269 198. Eevision and readjustment of accounts by tax commission 271 199. Review of determination of tax commission by certiorari 272 200. Regulations as to such writ of certiorari 272 201. Warrant for the collection of taxes 273 202. Information of delinquents 274 203. Action for recovery of taxes; forfeiture of charter of delinquent corporations 274 204. Reports to be made by the secretary of state 275 205. Exemptions from other state taxation 275 206. Application of taxes 276 207. Limitation of time 276 Article 9-a. Franchise Tax on Business Corporations. Section 208. Definitions 278 209. Franchise tax on corporations based on net in- •me 279 210. Corporations exempted from article 280 211. Reports of corporations to tax commission 280 212. Reports by corporation on basis of fiscal year 283 213. Reports to be sworn to ; forms 284 214. Computation of tax 284 214a. Taxation of corporations acquiring assets or fran- chises of other corporations 286 TABLE OF CONTENTS XXI PAGE. Section 215. Bate of tax 287 216. Penalty for failure to report 287 217. Powers of tax commission 288 218. Revision and readjustment of accounts by tax commission 288 '219. Review of determination of tax commission by certiorari and regulations as to writ 289 219a. Audit and statement of tax 289 219b. Notice of tax ; 290 219c. When tax payable 290 219d. Corrections and changes • 291 219e. Warrant for the collection of taxes 292 219f. Action for recovery of taxes; forfeiture of charter by delinquent corporations 293 219g. Deposit of revenues collected 294 219h. Disposition of revenues collected 295 219i. Secrecy required of officials; penalty for violation. 297 219j. Exemption from certain other taxation 298 219k. Limitation of time 298 2191. Personal property defined 298 Article 12. Tax on Transfers of Stock. Section 270. Amount of tax 299 271. Stamps, how prepared and sold 301 271a. Sale of stamps 302 272. Penalty for failure to pay tax 303 273. Cancelling stamps ; penalty for failure 304 274. Contracts for dies ; expenses how paid 304 275. Illegal use of stamps; penalty 305 275a. Registration ; penalty for failure 305 276. Power of tax commission 306 277. Civil penalties; how recovered 309 278. Effect of failure to pay tax 310 279. Application of taxes 310 280. Refund of tax erroneously paid 311 Rulings of state comptroller 312 CIVIL PRACTICE ACT PROVISIONS. Definitions. Section 7. General definitions and rules of construction 318 Limitations of Actions. 17. Attempt to commence action in court of record. . . 313 18. Attempt to commence action in court not of record. 319 XXll TABLE OF CONTENTS County Courts. page. Section 68. When domestic corporation or joint stock company- deemed resident for determining jurisdiction of County Court. .' 319 Preferred causes. 138. Preferences among civil actions. . .*. 320 Summons. 228. Personal service of summons upon domestic corpora- tion 320 229. Personal service of summons upon foreign corpora- tion 320 230. Order for substituted service of summons in cer- tain cases 321 231. Manner of making substituted service 321 232. Order for service of summons by publication 322 Action on note, etc. 252. Verification in action against corporation to recover on note or other evidence of debt 323 Evidence. 340. Admission by member of corporation 323 Documentary evidence. 373. Book of foreign corporation as evidence 324 374. Copy of books of foreign corporation 324 377. Copy of designation of person upon whom to make service, as evidence 325 Suipoena duces tecum; order to produce. 411. Production of book of account upon trial or hearing 325 413. Production of corporation book or paper on trial. . 326 414. Personal attendance pursuant to subpoena duces tecum 326 Challenges to jurors. 452. Challenge to the favor 326 Trial iy referee. 464. Reference by consent of parties. ._ 327 465. Reference in discretion of court 327 Judgment against non-resident, how enforced. 520. Judgment against non-resident enforcible only against attached property 327 Garnishment. 684. Levy upon earnings or income of judgment-debtor . . 328 TABLE OF CONTENTS XXlll Supplementary proceedings. page. Section777. Certain money or other property not affected 330 798. Mode of service of certain orders 330 Arrest, injunction and attachment. 816. Proof on application or hearing 331 Injunction. 821. Order or warrant to recite the grounds therefor. . . 331 Arrest. 826. Eight to arrest depending upon the nature of the action 331 883. Service of order 333 895. Damages sustained by a third person 333 896. Action on the undertaking 333 Attachment. 902. In what actions attachment of property may be had 334 903. What must be shown to procure warrant of attach- ment 334 914. Attachment of unpaid subscription to foreign cor- poration 335 915. Levy upon interest in shares or bonds 335 916. Levy upon cause of action, evidence of debt or claim to estate 336 917. Method of making levy 336 918. Certificate of defendant's interest to be furnished. 337 919. Examination of person refusing certificate 338 Judgment-creditor's action. 1196. Application of provisions for action of discovery; what property cannot be reached 338 Action against usurper of office. 1208. Action by attorney general against usurper of of&ce or franchise 339 1209. One action against several persons 339 1211. Proceedings in action for usurpation when com- plaint names rightful incumbent 339 1212. Order of arrest in action for usurpation 340 1214. Action for damages for usurpation of office 340 1215. Pinal judgment in action for usurping ofSce or franchise 340 1216. Fine in action for usurping office or franchise 340 1217. Action by attorney general for unlawful exercise of corporate rights 341 XXIV TABLE or CONTENTS PAGE. Sec. 1218. Lnjunction in action by attorney general for unlaw- ful exercise of corporate rights 341 1219. Immunity of witnesses in action by attorney gen- eral for unlawful exercise of corporate rights . . . 342 1221. Action triable by jury , 342 Mandamus. 1321. Sea-vice of alternative mandamus order 342 Security for costs generally. 1484. When defendant may require plaintiff to give se- curity for costs 343 Summary proceedings. 1421. Precept ; how served 343 NEW YOEK CITY COURT ACT PEOVISION. Section 18. General jurisdiction 344 MtTNICIPAL COURT CODE PROVISIONS. Section 6. Jurisdiction 345 Attachment. 39. In what actions granted 345 40. Grounds; afladavit 345 Action against corporation on a note. 94. Order that issues be tried unnecessary in action against corporation 345 SURROGATE'S COURT ACT PROVISIONS. Section 55. Citation ; how served within state 346 56. Service personally without the state, or by publica- tion 347 133. Letters of administration with will annexed; when and to whom granted 347 JUSTICE COURT ACT PROVISIONS. Jurisdiction and service. Section 10. Where action must be brought 349 11. Actions generally; by or against whom brought... 349 51. Service on other corporations 349 TABLE OF CONTEKTS XXV Attachments in justice court. page. Section 74. In what actions warrant of attachment may be granted 35O 75. What must be shown to procure a warrant 350 Verification. 153. Verification; how and by whom made 351 154. Form of affidavit of verification 352 Actions by or against corporations. 170. Complaint in actions by or against corporations... 352 171. Misnomer, when waived 352 Miscellaneous trial provisions. 237. Challenge for special cause 352 253. When proof of corporate existence unnecessary. . 353 Garnishment. 300. Garnishee proceedings 353 Security for costs. 315. Security for costs where plaintiff is a foreign cor- poration 355 Summary proceedings. 390. Precept ; how served 355 PENAL LAW PROVISIONS. Section 280. Corporations and voluntary associations not to practice law 356 421. Untrue and misleading advertisements 358 430. Marking articles made of linen 359 431. Marking articles made of gold 359 432. Illegal charges for elevating, receiving or dis- charging grain 359 433. Sale of agricultural products on commission 360 434. Concealing foreign matter in merchandise 360 435. False labels 360 436. Using false marks as to manufacture 361 437. Penalty for selling half wine not labeled 361 438. Skimmed milk 361 439. Corrupt influencing of agents, employees or serv- ants 362 440. Conducting business under assumed name 362 441. Producing unpublished, undcdicated or copy- rigEted opera or dramatic composition with- out consent of owner 364 XXVI Section 442, 531. 584. Section 660. 661. 662. 663. 664. 665. 666. 667. 668. 669. 670. 759. 850. 851. 882. 889. 890. 893. 926. 950. 951. 952. 953. 970a, 1271. TABLE OF CONTENTS PAGE. Provisions when property is purchased or credit by aid of .written statement of purchaser's ability to pay 364 Coercion by employers 365 Witnesses ' privileges 366 Article 64. Corporations. Frauds in the organization of corporations 367 Frauds in procuring organization of corporations. 368 Fraudulent issue of stocks and bonds 368 Acting for foreign corporations not authorized to do business in this state 369 Misconduct of officers and directors of stock cor- porations 370 Misconduct of directors, of&cers, agents and em- ployees of corporations 371 Unlawful use of certain titles in connection with corporate name 371 Presumption of knowledge of corporate condition and business and of assent thereto by directors ; definitions 372 Misconduct at corporate elections 373 Misconduct of officers and agents of pipe-line corporations 373 Misconduct by officers and directors of life or casualty insurance corporations upon the co- operative or assessment plan or of fraternal beneficiary societies, orders or associations 374 Refusal to permit employees to attend election. . 374 Extortion deiined 374 What threats may constitute extortion 375 Falsely indicating person as corporate officer 375 Forgery in third degree 375 Officer of corporation selling fraudulent shares. . . 377 Punishment for forgery in third degree 378 False rumors as to stocks, bonds or public funds. . 378 Fals# statements in regard to employment 379 Reporting or publishing fictitious transactions in securities 379 False statement or advertisement as to securities. 379 Manipulation of prices of securities 380 The sale of gambling implements and devices pro- ■^ 'i^Wted 380 Hours of labor to be required 331 Section 1272. 1275. 1276. 1277. 1311. 1312. 1313. 1353. 1932. TABLE OF CONTENTS XXVII PAGE. Payment of wages 382 Violations of provisions of labor law; the in- dustrial code; the rules, regulations or orders of the industrial commissioner and industrial board 382 Negligently furnishing insecure scaffolding 383 Neglect to complete or plank floors of buildings constructed in cities 383 Custody in trust of funds for purchase of certain real property 384 Misappropriation of funds held in trust for certain real property 384 Assisting misappropriations of trust funds for cer- tain real property sales 384 Furnishing false Information 385 Punishment of corporation convicted of felony. . . 385 CODE OF CRIMINAL PEOCEDUBE PROVISIONS. Section 335. Plea of guilty, how put in 386 675. Summons upon an information or presentment against a corporation, by whom issued, and when returnable 386 676. Form of the summons 386 677. When and how served 386 678. Examination of the charge 387 679. Certificate of the magistrate, and return thereof with the depositions 387 680. Grand jury may proceed as in the case of a natural person 387 681. Appearance, and plea to indictment, and proceed- ings thereon 387 C82. Fine on conviction, how collected 388 LABOR LAW PROVISIONS. Section 3. Hours to constitute a day's work 390 5. Hours of labor in brick yards 390 8a. One day of rest in seven 391 9. Payment of wages by receivers 393 10. Cash payment of wages , 393 11. When wages are to be paid 393 12. Penalty for violation of preceding section 394 24. Contributions to benefit or insurance fund 3b)4 XXVlll TABLE OF CONTENTS DEBTOR AND CEEDITOE LAW PEOVISIONS. Akticle 2. General Assignments for the Benefit of Creditors. page. Section 2. Jurisdiction of proceedings ^ 395 3. Eequisites of general assignments 395 GENERAL BUSINESS LAW PEOVISIONS. Article 22. Monopolies. Section 340. Contracts for monopoly illegal and void 396 341. Penalty 397 342. Action to restrain and prevent 397 343. Procedure; application for order 397 344. Order for examination 398 -345. No person excused from answering 399 346. Powers of referee 399 Abticle 23-A. Fraudulent Practices in Respect to Stocks, Bonds and Other Se- curities. Section 352. Investigation by attorney-general 401 353. Action by attorney-general 402 354. Examination of witnesses and preliminary injunc- tion 403 355. Procedure on hearing 404 356. Powers of referee 404 357. Penalties 405 358. Criminal prosecutions 405 359. No person excused from answering 406' 359a. Appointment of deputies 407 Article 25. Interest and Usury. Section 370. Eate of interest 408 371. Usury forbidden 408 372. Eecovery of excess 408 373. Usurious contracts void 409 374. Corporations prohibited from interposing defense of usury 409 375. Transfer of cause of action for usury 410 376. Return of excess a bar to further penalties 410 377. Borrower bringing an action need not offer to ^^P^y 410 TABLE OF CONTENTS XXIX PAGE. Section 378. How interest calculated 411 379. Interest permitted on advances on collateral secur- ity 411 380. Brokerage on loans 411 381. Recovery of excess 411 382. Restitution a bar to further penalties 412 LIEN LAW PROVISIONS. Section 230. Chattel mortgages to be ffled 413 230a. Chattel mortgages on stocks of merchandise 414 231. Corporate mortgages against real and personal property 415 232. Where filed 415 233. Filing and entry 416 NEGOTIABLE INSTRUMENTS LAW PROVISIONS. Section 41. Effect of indorsement by infant or corporation. . . 418 72. Effect of instrument drawn or indorsed to a per- son as cashier 418 332. How negotiable bonds are made non-negotiable. . . 418 PERSONAL PROPERTY LAW PROVISIONS. Section 33. Validity of certain agreements made without con- sideration 419 42. Regulating loans of money on salaries 419 43. Factor's act 421 44. Transfer of goods in bulk 423 45. Notice of liens upon merchandise or the proceeds thereof to secure loans or advances 424 Article 6. Transfers of Shares of StocJc Corporations. 1C2. How title to certificates and shares may be trans- ferred 428 163. Powers of those lacking full legal capacity and of fiduciaries not enlarged 428 164. Corporation not forbidden to treat registered holder as owner 428 165. Title derived from certificate extinguishes title de- rived from a separate document 429 166. Who may deliver a certificate 429 167. Indorsement effectual in spite of fraud, duress, mistake, revocation, death, incapacity or lack of consideration or authority 429 XXX TABLE OF CONTENTS PAGE. Section 168. Eecission of transfer 430 169. Keeision of transfer of certificate does not in- validate subsequent transfer by transferee in possession 430 170. Delivery of unindorsed certificate imposes obliga- tion to indorse 431 171. Ineffectual attempt to transfer amounts to a prom- ise to transfer - 431 172. Warranties on sale of certificate 431 173. No warranty implied from accepting payment of a debt 432 174. No attachment or levy upon shares unless certifi- cate surrendered or transfer enjoined 432 175. Creditor's remedies to reach certificate 432 176. There shall be no lien or restriction unless indi- cated on certificate 432 177. Alteration of certificate does not divest title to shares 433 178. Lost or destroyed certificate 433 179. Eule for cases not provided for by this act 433 180. Interpretation shall give effect to purpose of uni- formity 434 181. Definition of indorsement 434 182. Definition of person appearing to be the owner of certificate 434 183. Other definitions 434 184. Article does not apply to existing certificates .... 435 185. Inconsistent legislation repealed 435 REAL PROPERTY LAW PROVISIONS. Section 309. Acknowledgment by corporation and form of cer- tificate 43g Article 15. Action to Comp^ the Determination of a Claim to Heal Property. Section 512. This article applies to corporations 437 EXECUTIVE LAW PROVISIONS. Section 105a. Powers of notaries who are stockholders, directors, officers, or employees of banks or other corpora- tio'is 438 TABLE OF CONTENTS XXXI GENERAL CONSTBUCTION LAW PEOVISIONS. PAGE. Section 22. Gender 439 37. Person 439 43. Seal of court, public officer, or corporation 439 45. Seal, private as corporate seal 439 Fees 443 Table op Fees ; 448 Table of Organization Expenses and Franchise Tax 453 Forms 455 Preface iii Table op Contents vii Comparative Section Tables: Business Corporations Law xxxiv General Corporation Law .' xxxv Stock Corporation Law xxxvi Constitution, Extracts from New Tore xxxvii General Index „ 519 XXXll TABLE OF CONTENTS INDEX TO rOEMS. PAGE. No. 1. Certificate of incorporation 455 2. Subscription agreement 460 3. Minutes of meeting of incorporators.* 461 4. Minutes of first meeting of directors 463 5. Certificate of payment of one-half of capital stock 467 6. Amended certificate to correct errors, omissions, etc. . . 468 7. By-laws 469 8. Proof to be filed by foreign stock corporation to obtain license to do business 472 9. Voting trust agreement 474 10. Proxy 477 11. Petition to set aside election of directors 478 12. Consent and certificate of consent or vote to extend cor- porate existence 479 13. Waiver of notice of meetings 480 14. Reference to waiver of notice in proceedings 481 15. Certificate of proceedings of special meeting of stock- holders to authorize change of corporate name 481 16. Certificate of dissolution by consent of stockholders be- fore expiration of time limit 484 17. Consent of stockholders to mortgage 487 18. Certificate of consent or vote to moi-tgage 487 19. Unanimous consent to change principal office and place of business 488 20. Certificate of vote or consent to change principal office and place of business 489 21. Certificate of merger 491 21a. Consolidation agreement, etc 492 22. Notice of annual meeting 498 23. Unanimous consent of stockholders to increase or re- duce number of directors 498 24. Transcript of proceedings of meeting increasing or reducing numbet of directors 499 25. Affidavit of custodian of stock book 500 26. Oath of*inspectors of election 501 27. Certificate of inspectors of election 501 28. Stock book 502 29. Annual report to secretary of state 503 30. Stock certificate 504 31. Certificate of partly-paid stock 505 32. Certificate of preferred stock 506 TABLE OF CONTENTS XXXlll PAGE No. 33. Notice of meeting to authorize issue of preferred or common stock 507 34. Certificate of proceedings of meeting to authorize pre- ferred or common stock 508 35. Notice of meeting to increase or reduce capital stock. . . 509 36. Unanimous consent to increase or reduce capital stock.. 510 37. Certificate of consent or vote to increase or reduce capi- tal stock 511 38. Certificate of increase or reduction of stated capital of a corporation having stock without nominal or par value 513 39. Affidavit for approval of state comptroller on reduc- tion of capital stock 516 40. Increase or reduction of par value of shares 517 41. Corporation acknowledgment 517 XXXIV COMPABATIVB SECTION TABLES COMPARATIVE SECTION TABLES Showing Sections of former General Laws and Corresponding Sections of Consolidated Laws. BUSINESS CORPORATIONS LAW. Laws Chapter Section Section of Consoli- dated Law 1892 691 1 2 3 4 S 6 *7 8 9 10 11 12 13 14 15 16 17 1 do t2 3 do do 4 do 5 do 6 do do 7 do g do 9 do 10 do 11 do 12 do 13 do 14. do 15 do 1R ♦Repealed by L. 1895, Ch. 671. tPait, and { 10, Oeneral Corporation Law, part. COMPARATIVE SECTION TABLES GENERAL CORPORATION LAW. XXXV Laws Chapter Section Section of Consoli- dated Law 1892 687 1 t2 3 4 5 9 **10 11 12 13 14 tl5 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 t36 t37 38 39 40 41 Corresponds to. do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do do 1 2 3 4 *5 *6 7 8 9 10 11 12 13 14 15 *16 20 21 22 23-25 26 27 28 29 30 31 32 33 34 35 36 37-41 321 330 331 42 43 320 44 * Other matter incorporated. See notes to eections. ** Part only. See J 2, Business Corporations Law. tPart onljr. This section was neither incorporated nor repealed. XXXvi COMPAKATIVE SECTION TABLES STOCK CORPORATION LAW. Laws 1892 Chapter 688 Section 1 2 3 4 5 6 7 8 20 21 22 23 *24 25 26 27 28 29 30 31 32 33 t34 40 41 42 43 44 45 46 47 48 *49 50 51 52 63 54 55 53 •67 58 59 60 61 62 Corresponds to . do do do do do do do do do do do Section of Consoli- dated Law 1,5 6 9 10 11 12 14 7 25 26 27 28 Corresponds to . do do do do do do do do 29 51 30 31 32 34 35 18 16,17 Corresponds to . do do do do do do do do 8, 50, 52 53 65 54 62 63 64 61 66 Corresponds to do do do do do do do do do do do do Gen. Corp. Law. . Stock Corp. Law . Stock Corp Law. Stock Corp. Law . Gen. Corp. Law. . Stock Corp. Law . 67 68 69 33 56-58 59 65 221 15 13 70 220 60 • Repealed by L. 1901, Ch. 354, § 4. t Repealed by L. 1909, Ch. 61, §| 80, 81. EXTRACTS FROM NEW YORK CONSTITUTION ARTICLE III Cases in which private and local bills shall not be passed, etc. § 1 8. The Legislature shall not pass a private or local bill in any of the following cases : ********** Granting to any private corporation, association or indi- vidual any exclusive privilege, immunity or franchise whatever. ********** Granting to any person, firm or corporation, an exemp- tion from taxation on real or personal property. (Added in 1 901.) The Legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment, may be provided for by general laws. ***** Certain sections not to apply to commission bills. § 23. Sections seventeen and eighteen of this article shall not apply to any bill, or the amendments to any bill, which shall be reported to the Legislature by commis- sioners who have been appointed pursuant to law to revise the statutes. Prison labor; contract system abolished. — § 29. The Legislature shall, by law, provide for the occupation and employment of prisoners sentenced to the several State prisons, penitentiaries, jails and reformatories in the State; and on and after the first day of January, in the year one thousand eight hundred and ninety-seven, no person in any such prison, penitentiary, jail or reformatory, shall be required or allowed to work, while under sentence thereto, at any trade, industry or occupation, wherein or whereby his work, or the product or profit of his work, shall be farmed out, contracted, given or sold to any person, firm, association or corporation. This section shall not be con- strued to prevent the Legislature from providing that con- victs may work for, and that the products of their labor may be disposed of to, the State or any political division thereof, or for or to any public institution owned or managed and controlled by the State, or any political division thereof. [New.] [xxxvii] XXXviii EXTEACTS FROM STATE CONSTITUTION ARTICLE VII State credit not to be given. — Section i. The credit of the State shall not in any manner be given or loaned to or in aid of any individual, association or corporation. ARTICLE VIII Formation of corporations. — Section i . Corporations may be formed under general laws ; but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the Legislature, the objects of the corporation cannot be attained under general laws. All general laws and special acts passed pursuant to this section may be altered from time to time or repealed. Dues of corporations. — § 2. Dues from corporations shall be secured by such individual liability of the corpo- rators and other means as may be prescribed by law. Corporations, definition of term. — § 3. The term corpo- rations as used in this article shall be construed to in- clude all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships. And all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons. Credit or money of the State not to be given. — § 9. Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking. ****** Limitation of indebtedness of counties, cities, towns and villages, etc. — § 10. No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. * * * (Amended in 1910.) BUSINESS CORPORATIONS LAW Laws of 1909, Chapter 12, entitled " AN ACT in relation to busi- ness corporations', constituting Chapter Four of the Consolidated Laws." Article 1. Short title (§1). 2. General provisions (§§ 2-16). 3. Co-operative corporations (§§ 25-38a). 4. Laws repealed; when to take effect (§§ 50, 51). ARTICLE I Short Title Section 1. Short title. § I. Short title. — This chapter shall be known as the " Business Corporations Law." Derivation.— L. 1890, Ch. 567, i 1; L. 18»2, Ch. 691, § 1; L. 1895, Ch. 671, § 1. ARTICLE 2 General Provisions Section 2. Incorporation. 2a. Incorporating for the purpose^f conducting law business, et cetera, prohibited. 3. Restrictions upon commencement of business. 4. Reorganization of existing corporations. 5. Payment of capital stock. 6. Full liability corporations. 7. Consolidation of corporations. 8. Submission of consolidation agreement to stockholders. 9. Powers of consolidated corporations. 10. Transfer of property of old corporations to consolidated corporations. 11. Rights of creditors of old corporations. 12. District steam corporations. Note. — The original Business Corporations Law appeared in Chap- ter 41 of the General Laws. L. 1890, Ch, 567. 2 BUSINESS COEPOBATIONS LAW § 2 Section 13. Examination of meters by agent of district steam cor- porations. 14. Entry by agent of district steam corporation to cut oflf steam. 15. Water companies. 16. Improvement corporations; right of condemnation. § 2. Incorporation. — Except as provided in section two-a of this chapter, three or more persons may become a stock corporation for any lawful business purpose or purposes other than a moneyed corporation, or a corpo- ration provided for by the banking, the insurance, the railroad and the transportation corporations laws, or an educational institution or corporation which may be incorporated as provided in the education law, by mak- ing, signing, acknowledging and filing a certificate which shall contain: Amended by L. 1909, Ch. 484, § 1. 1. The name of the proposed corporation. 2. The purpose or purposes for which it is to be formed. 3. The amount of the capital stock, and if any portion be preferred stock, the preferences thereof. 4. The number of shares of which the capital stock shall consist, each of which shall not be less than five nor more than one hundred dollars, and the amount of capital not less than five hundred dollars, with which said corporation will begin business. 5. The city, village or town in which its principal busi- ness office is to be located. If it is to be located' in the city of New York, the borough therein in which it is to be located. 6. Its duration. 7. The number of its directors, not less than three.* 8. The names and post-office addresses of the directors for the first year. 9. The names and post-office addresses of the sub- ' See § 34, General Corporation Law. § 2 BUSINESS CORPORATIONS LAW 3 scribers to the certificate, and a statement of the num- ber of shares of stock which each agrees to take in the corporation. Any certificate of incorporation filed, prior to April twenty-second, eighteen hundred and ninety-six, under the provisions of the business corporations law thereto- fore in force which shall contain the names and post- ofifice addresses, either of the subscribers to the stock or of the subscribers to the certificate, and a statement of the number of shares of stock which each agrees to take in the corporation, shall be deemed to have complied with the requirements of section two, subdivision nine of said law.* If meetings of the board of directors are to be held only within the state the certificate or by-laws must so provide.f Derivation.— L. 1890, Ch. 567, § 2; L. 1892, Ch. 691, § 2; L. 1895, Ch. 671; L. 1896, Oi. 369, and Ch. 460; L. 1901, Ch. 520; L. 1903, Ch. 525; L. 1904, Ch. 446, § 1; L. 1907, Ch. 646, § 1. Compare L. 1811, Ch. 67, §§ 1, 2; L. 1815, Ch. 47, § 1; L. 1816, Ch. 58, §§ 1, 2; L. 1817, Ch. 223; L. 1818, Ch. 67; L. 1819, Ch. 102; L. 1821, Ch. 14; L. 1848, Ch. 40, §§ 1, 2; L. 1851, Ch. 14; L. 1853, Ch. 117; L. 1853, Ch. 333, § 1; L. 1855, Ch. 301; L. 1857, Ch. 29, §§ 1, 3; L. 1857, Ch. 262; L. 1863, Ch. 63; L. 1864, Ch. 337; L. 1865, Ch. 234; L. 1865, Ch. 307; L. 1866, Ch. 371; L. 1866, Ch. 799, § 1; L. 1866, Ch. 838; L. 1867, Ch. 509; L. 1868, Ch. 781; L. 1869, Ch. 605; L. 1870, Ch. 773; L. 1871, Ch. 535, § 1; L. 1871, Ch. 657, § 1; L. 1872, Ch. 248; X. 1872, Ch. 426; L. 1872, Ch. 609; L. 1872, Ch. 820; L. 1873, Ch. 616; L. 1873, Ch. 814; L. 1874, Ch. 143; L. 1874, Ch. 149; L. 1875, Ch. 113; L. 1875, Ch. 365; L. 1875, Ch. 611, §§ 1, 3; IL. 1877, Ch. 374, § 1; L. 1879, Ch. 290; L. 1880, Ch. 85; L. 1880, Ch. 241, § 1; L. 1881, Ch. 58, 232, and 589; L. 1881, Ch. 351; L. 1881, Ch. 650; L. 1882, Ch. 273; L. 1882, Ch. 309; L. 1883, Ch. 238; L. 1883, Ch. 240; L. 1884, Ch. 267; L. 1885, Ch. 84; L. 1885, Ch. 535; L. 1888, Ch. 313; L. 1890, Ch. 23; L. 1890, Ch. 119; L. 1890, Ch. 508. See 119 App. Div. 749, aff'd in 189 N. Y. 560; 46 App. Div. 20, aflF'd 167 N. Y. 587; 70 Misc. 631. For form of certificate of incorporation, see Form No. 1. ' • This paragraph was incorporated into the Consolidated Law* from L. 1896, 'Ch. 369, § 2. t Consolidators' Note— " Last sentence omitted from eection be- cause provided for in General Corporation Law, § 10." 4 BUSINESS CORPORATIONS LAW § 2 Subscribers to certificate of incorporation. — At least two-thirda of the subscribers to the certificate of incorporation must be citizens of the United States, and at least one of them a resident of the State of New York. All of the subscribers must be natural persons of full age. See § 4, General Corporation Law. In addition to the names and post-office addresses of the subscrib- ers the certificate of incorporation must state the number of shares each subscriber agrees to take. There is no provision specifying the amount of shares to be -subscribed for or mentioned in the certificate. The certificate of incorporation should be executed and acknowl- edged in triplicate; one to file with the Secretary of State, one to file with the county clerk, and one for future use by the corporation. A certified copy, instead of a duplicate original, may be filed with the county clerk. See § 5, .General Corporation Law. If executed without the State of New York, the certificate of incorporation must be acknowledged before a New York commissioner of deeds or an oflScer empowered to take acknowledgments of deeds, whose authority must be authenticated by the certificate of a proper local official. Name. — The name of a corporation must not be that of another existing domestic corporation, or one so nearly resembling it as to be calculated to deceive. § 6, General Corporation Law. No corpora- tion may have the word trust, bank, banking, insurance, assurance, indemnity, guarantee, guaranty, title, casualty, surety, fidelity, bond- ing, savings, investment, loan or benefit as part of its name, except a corporation formed under the banking law or the insurance law. See § 6, General Corporation Law. See also § 15, General Corporation Law, as to similar restrictions against foreign corporations. Purposes. — The purposes of a business corporation may be any law- ful ones, and may be altered. See § 18, Stock Corporation Law. Capital stock. — The capital stock may be any amount exceeding $500, the minimum requirement. One-half of the capital must be paid in within one year from incorporation. See § 5, Business Cor- porations Law. The capital stock may be increased or reduced. See §§22 and 62, Stock Corporation Law. One or more classes of pre- ferred stock may be issued if the certificate of incorporation provide, or by the unanimous consent of the stockholders, or by the consent of the "holders of«record of two-thirds of the capital stock, given at a meeting called for that purpose." § 61, Stock Corporation Law. If the certificate of incorporation authorizes preferred stock, the amount thereof and the amount of the different- classes of preferred stock, and their priority, character, etc., should be clearly set fortk See § 2, Business Corporations Law. Preferred stock may be ex- changed for common stock by a two-thirds vote of the directors upon the written request of the holders of any preferred stock," upon § 2 BUSINESS COKPORATIONS LAW 5 such valuation as may have been agreed upon in the certificate of organization of such corporation, or the issue of such preferred stock, or share for share, but the total amount of such capital stock shall not be increased thereby. ' ' See § 61, Stock Corporation Law. Shares of stock -without nominal or par value. — See §§ 19-24c, in- clusive, Stock Corporation Law. It seems that preferred stock with- out nominal or par value may now be issued. See § 19, Stock Corpo- ration Law. Number and par value of shares. — The certificate must state the number of shares, the par value of each share other than stock with- out nominal or par value (which must not be less than five nor more than one hundred dollars), and the amount of capital (which must not be less than five hundred dollars), with which the corporation will begin business. See § 2, Business Corporations Law; § 19, Stock Corporation Law. A corporation is forbidden to incur any debt imtil this amount is paid either in money or property. See § 3, Business Corporations Law. The number and par value of shares may be changed. See § 65, Stock Corporation Law. Principal business office. — A corporation is taxed on personalty where its principal business otSce is located. See § 11, Tax Law. This place may be changed at any time. § 13, Stock Corporation Law. For definition, see § 3, subd. 9, General Corporation Iiaw. See 87 Hun, 341, aflfd in 147 K Y. 715; 91 Hun, 594; 20 App. Div. 166; and see also 46 App. Div. 20, 623, aflf'd in 167 N. Y. 587. Duration. — The duration of a corporation, formerly restricted to fifty years, is now unlimited. If the period is not specified, the life of the corporation is deemed to be perpetual. See § 11, subd. 1, Gen- eral Corporation Law. At any time prior to its expiration the life of a corporation may be extended. § 37, General Corporation Law. The life of a consolidated corporation is restricted to fifty years. § 7, Business Corporations Jjaw. Directors. — The number of directors must be not less than three. See § 2, subd. 7, Business Corporations Law. Co-operative corpora- tions are required to have not less than five directors. See § 28, idem. The number of directors may be changed at any time. § 26, Stock Corporation Law. One of the directors must be a citizen of the United States and a resident of the state. § 34, General Corpo- ration Law. Directors must be stockholders unless otherwise provided by the certificate of incorporation or stockholders' by-law. § 25, Stock Corporation Law. At least one-fourth of the directors of a stock corporation must be chosen annually. Vacancies in the board of directors are to be filled as prescribed in the by-laws. Idem. Directors hold over until their successors are elected. § 28, General Corporation Law, 6 BUSINESS COKPOEATIONS LAW § 2-8. Directors for the first year. — The directors designated to serve for the first year need not be subscribers to the certificate of incorpora- tion. It has been held that they need not even be stockholders (163 N. Y. 423) ; but see § 25 of the Stock Corporation Law which requires all directors to be stockholders unless otherwise provided for in thp certificate of incorporation or in a by-law adopted at a stockholders' meeting. Filing and recording. — An original and amended certificate of in- corporation must be filed and recorded in the ofl&ee of the Secretary of State, and a certified copy of such certificate or a duplicate orig- inal must be filed and recorded in the office of the clerk of the county in which the principal office is to be located. See § 5, General Cor- poration Law. Fees. — See Table of Fees, post. Tax upon organization. — The organization. tax is one-twentieth of one per cent, on the amount of authorized capital stock, and on any subsequent increase. The tax on stock without nominal or par value is five cents per share. The minimum organization tax is ten dol- lars. A receipt for the tax is issued by the State Treasurer to the Secretary of State, and a duplicate receipt is furnished for the pur- pose of being filed with the county clerk. § 180, Tax Law. The amount of the organization tax should be remitted directly to the State Treasurer at the same time the certificate of incorporation is forwarded to the Secretary of State, together with hia fees. All pay- ments are required to be made in currency, or by certified check, bank draft, postal or express money order. Tax upon consolidation. — See § 180, Tax Law. Tax upon increase of capital. — See § 180, Tax Law. § 2-a. Incorporating for the purpose of conducting law business, et cetera, prohibited. — No corporation shall be organized or created under the provisions of this chapter for the purpose or purposes of conducting any branch of the practice^ of law or of retaining or employing an attorney or attorneys to furnish legal advice, draw legal papers or perform legal services of any kind or descrip- tion, either directly for the person, persons or corpora- tion for whose use such services are rendered, or for the corporation retaining such attorney in compliance with any contract of employment of the corporation or of the attorney made by the corporation with any other person. §§ 3, 4 BUSINESS CORPOEATIONS LAW 7 persons or corporation. The statement of the purpose or purposes of a corporation, in any certificate filed under the provisions of this chapter, in whatsoever language the same may be set forth, shall not be held or construed to confer on the corporation the power to transact any business specified in this section as a purpose for which the creation of a corporation under this chapter is pro- hibited; and particularly when the stated objects of a corporation include the collection of debts or accounts, in words or substance, they shall not be construed to include the employment or furnishing of attorneys to prosecute any action or pursue any legal or equitable remedy in aid of such collection. Added by L. 1909, Ch. 484. See 198 N. Y. 479. § 3. Restrictions upon commencement of business. — No such corporation shall incur any debts until the amount of capital specified in its certificate of incorpora- tion, as the amount of capital with which it will begin business, shall have been paid in in money or property. Derivation.— L. 1890, Ch. 567, § 3; L. 1892, Ch. 691, § 3; L. 1896, Ch. 671, i 1. Compare L. 1875, Ch. 611, § 7. See 150 App. Div. 442. § 4. Reorganization of existing corporations. — Any stock corporation heretofore organized, except a moneyed or transportation corporation, or a corporation the busi- ness of which partakes of the nature of banking or in- surance, may reincorporate under this chapter in the fol- lowing manner: The directors of the corporation shall call a meeting of the stockholders thereof by publishing a notice, stating the time, place and object of the meet- ing, signed by at least a majority of them, in a news- paper of the county in which its principal business office is situated, once a week, for at least three successive weeks, and by serving upon each stockholder, at least three weeks before the meeting, a copy of such notice 8 BUSINESS CORPOBATIONS LAW § 5 either personally or by depositing it in the post-office, postage prepaid, addressed to him at his last known post- office address. The stockholders shall meet at the time and place specified in the notice and organize by choos- ing one of the directors chairman, and a suitable secre- tary, and shall then take a vote of thpse present in per- son or by proxy upon the proposition to reincorporate under this chapter, and if votes representing a majority of all the stock of the corporation shall be cast in favor of the proposition, the officers of the meeting shall ex- ecute and acknowledge a certificate of tfeg" proceedings, which certificate shall also contain the statements re- quired by section two of this chapter, and shall be filed in the offices where certificates of incorporation under this chapter are required to be filed. From the time of such filing such corporation shall be deemed to be a cor- poration organized under this chapter, and if originally organized or incorporated under" a general law of this state, it shall have and exercise all such rights and fran- chises as it has heretofore had and exercised under the laws pursuant to which it was originally incorporated, and such reorganization shall not in any way aflfect, change or diminish the existing liabilities of the corpora,- tion. Derivation.— L. 1890, Ch. 567, § 5*; L. 1S92, Ch. 691, § 4; L. 1895, Ch. 671, §1. Compare L. 1875, Ch. 611, § 32; L. 1880, Ch. 187, § 1; L. 1885, Ch. 540, § 1. An organization tax is not required from corporations reorganizing under § 4. See 13 App. Div. 50; 118 App. Div. 624. § 5- Payment of capital stock. — One-half of the capi- tal stock of %very such corporation shall be paid in within one year from its incorporation, or the corpora- tion shall be dissolved, and the directors within thirty days after such payment shall make a certificate of the fact of such payment, which shall be signed and ac- knowledged by a majority of the directors, and verified by the president or vice-president and secretary or treas- § 6 BUSINESS COBPORATIONS LAW 9 liter, and filed in the offices where the certificates of in- corporation are filed. The dissolution of any such cor- poration for any cause shall not take away or impair any remedy against it, its stockholders or officers, for any liabilities incurred previous to its dissolution. Derivation.— L. 1890, Ch. 567, § 6; L. 1892, Ch. 691, § 5. Compare L. 1848, Ch. 40,' §§ 10, 11; L. 1875, Ch. 611, §§ 37, 38. See 143 N. Y. 676; 131 N. Y. 140; 124 N. Y. 25; 95 N. Y. 93; 80 N. Y. 599. Until the capital stock is fully paid in each stockholder is person- ally liable to creditors to the extent of the amount impaid on the stock held by him, for corporate debts contracted while such stock is held by him. See § 56, Stock Corporation Law. The time of payment of subscriptions to the capital stock is deter- mined by the board of directors. See § 54, Stock Corporation Law. No certificate of full payment is now necessary. For form of Certificcte pf Payment, see Form No. 5. § 6. Full liability corporations. — Every corporation formed under this chapter may be or become a full lia- bility corporation by inserting a statement in the cer- tificate of. incorporation, that the corporation thereby formed is intended to be a full liability corporation; and in case of an existing corporation, which is not a full liability corporation, it may become such by filing in the offices where certificates of incorporation are required to be filed, a supplemental certificate stating that there- after the corporation intends to be a full liability cor- poration, which certificate shall be executed and ac- knowledged by the president and treasurer of the cor- poration or by the board of directors, and shall have an< nexed thereto a copy of a resolution, adopted by a two- thirds vote of the board of directors, and the written consent of all the stockholders of the corporation, author- izing and consenting to the change of the corporation to a full liability corporation. If the corporation is formed as or becomes a full liability corporation all the stockholders of the corporation shall be severally indi- vidually liable to its creditors for all its debts and lia- bilities, and may be joined as defendants in any action 10 BUSINESS CORPORATIONS LAW § 7 against it. No execution shall issue against any stock- holder individually until execution has been issued against the corporation and returned unsatisfied, and all the stockholders shall contribute a proportionate share, according to the number of shares of "stock owned by each, of the amount paid by any stockholder on a judg- ment recovered against him individually for a debt of the corporation, and he may recover from the other stock- holders in the corporation in a joint or several action the proper portion due by them and each of them, of the amount paid by him on any such judgment. Derivation.— L. 1890, Ch. 567, § 7; L. 1892, €h. 691, § 6. Compare L. 1875, Ch. 611, § 34. This section is governed by § 59, Stock Corporation Law. See 113 App. Div. 782. See also 82 App. Div. 117; 87 App. Div. 312. See notes to Form No. 1. § 7. Consolidation of corporations. — Any two ox more corporations organized under the laws of this state for the purpose of carrying on any kind of business of the same or of a similar nature, which a corporation organ- ized under this chapter might carry on, may consolidate such corporations into a single corporation, as follows : The respective corporations may enter into and make an agreement signed by a majority of their respective boards of directors and under their respective corporate seals, for the consolidation of such corporations, pre- scribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new cor- poration, the number of directors who shall manage its affairs, not less than three, the names and post-ofiSce addresses of the directors for the first year, the term of its existence, net exceeding fifty years, the name of the town or towns, county or counties, in which its opera- tions are to be carried on, the name of the town or city and county in this state in which its principal place of business is to be situated, the amount of its capital stock, which shall not be larger in amount than the fair aggregate value of the property, franchises and rights of § 8 BUSINESS COKPOEATIONS LAW 11 such corporations, and the number of shares into which the same is to be divided, the manner of distributing such capital stock among the holders thereof, and if such corporations, or either of them, shall have been organ- ized for the purpose of carrying on any part of its busi- ness in any place out of this state, the agreement shall so state, with such other particulars as they may deem necessary. Former § 8, Business Corporations Law. Derivation.— L. 1890, Ch. 567, § 13; L. 1892, Ch. 691, § 8; L. 1896, Ch. 671; L. 1896, Ch. 369 and Ch. 460; L. 1899, Ch. 201, § 1; L. 1901, Ch. 520, § 2. Compare L. 1867, Ch. 960, § 1; L. 1877, Ch. 374, § 2; L. 1873, Ch. 616, § 1; L. 1884, Ch. 367, § 1. See 133 N. Y. 336; 128 N. Y. 59.1; 149- App. Div. 532; 62 Hun, 269; 57 Hun, 486; 80 Mise. 570. Amount of tax, — An organization tax of one-twentieth of ons per cent, is required, based upon the capital in excess of the aggregate amount of capital of the consolidating corporations. For form of Consolidation Agreement, etc., see Form No. 21a. § 8. Submission of consolidation agreement to stock- holders. — Such agreement shall be submitted to the stockholders of each of such corporations, at a meeting thereof to be called upon notice of, at least two weeks, specifying the time, place and object thereof, and ad- dressed to each at his last known post-office address, and deposited in the post-ofifict, postage prepaid, and pub- lished for at least two successive weeks in one of the newspapers in each of the counties in this state in which either of such corporations shall have its place of busi- ness, and if such agreement shall be approved at each of such meetings of the respective stockholders separately, by the vote by ballot of the stockholders owning at least two-thirds of the stock, the same shall be the agreement of such corporations, and a sworn copy of the proceed- ings of such meetings, made by the secretaries thereof, respectively, and attached thereto, shall be presumptive evidence of the holding and action of such meetings. Such agreement and verified copy of proceedings of such 12 BUSINESS COBPOEATIONS LAW § 8 meetings shall be made in duplicate, one of which shall be filed in the office of the secretary of state, and the other in the office of the clerk of the county where the principal business office of the new corporation is to be situated in this state, -and thereupon such corpora- tions shall be merged into the new corporation specified in such agreement, to be known by the corporate name therein mentioned, and the provisions of such agreement shall be carried into effect as therein provided. If any stockholder, not voting in favor of such agreement to consolidate, shall at such meeting, or within twenty days thereafter, object to such consolidation and demand pay- ment for his stock, such stockholder or such new cor- poration, if the consolidation takes effect at any time thereafter, may at any time within sixty days after such meeting apply to the supreme court at any special term thereof held in the district in which any county is situ- ated in which such new corporation may have its place of business, upon at least eight days' notice to the new corporation, for the appointment of three persons to ap- praise the value of such stock, and the court shall ap- point three such appraisers and designate the time and place of their first meeting, with such directions in re- gard to their proceedings as shall be deemed proper, and also direct the manner in which payment for such stock shall be made to such stockholder. The court may fill any vacancy in the board of appraisers occurring by re- fusal or neglect to serve or otherwise. The appraisers shall meet at the time and place designated, and they or any two of them, after being duly sworn honestly and faithfully to discharge their duties, shall estimate and certify the value of such stock at the time of such dis- sent, and deliver one copy to such new corporation, and another to such stockholder if demanded; the charges and expenses of the appraisers shall be paid by the new corporation. When the new corporation shall have paid the amount of such appraisal, as directed by the court, such stockholder shall cease to have any interest in such stock and in the corporate property of such corporation, § 9 BUSINESS COKPOBATIONS LAW 13 and such stock may be held or disposed of by such new corporation. Where any consolidation has been hereto- fore or shall be hereafter efifected pursuant to the laws of this state, and the holders of- ninety per centum of the capital stock of each of such corporations have voted in favor of such agreement to consolidate, if any stock- holder not voting in favor of such consolidation shall fail to exchange his stock for stock of such new corpora- tion within sixty days after this act shall go into effect, or, in case of a consolidation hereafter effected, within sixty days after he shall have become entitled to make such exchange, such new corporation may, at any time thereafter, upon at least eight days' notice to such stock- holder, to be given personally, within the state, if pos- sible, and if not, then in such manner as the court shall direct, apply to the court, as hereinbefore provided, for the appointment of three persons to appraise the value of such stock at the time of the expiration of such sixty days. Upon the completion of the appraisal in the man- ner hereinbefore provided for, and the payment by such new corporation of the amount of such appraisal, as di- rected by the court, such stockholder shall cease to have any interest in such stock, and in the corporate property of such corporation, and such stock may be held or dis- posed of by such new corporation. Former § 9, Business Corporations Law. Derivation.— L. 1890, Ch. 567, § 14; L. 1892, Ch. 691, § 9; L. 1902, Ch. 438. § 1. Compare L. 1867, Ch. 960, §§ 2, 3; L. 1873, Ch. 616, §§ 2, 3; L. 1884, Ch. 367, §§ 2, 3. See 140 App. Div. 532; 80 Misc. 570. Filing and recording fees. — See Table of Fees, post. § g. Powers of consolidated corporations. — Such new corporation in addition to the general powers of cor- porations shall enjoy the rights, franchises and priv- ileges possessed by each of the corporations so consoli- dated, subject to the restrictions, liabilities, duties and provisions contained in this chapter so far as the same 14 BUSINESS COEPOEATIONS LAW § 10 may be applicable to the purposes for which it shall have been organized and expressed in the agreement for con- solidation, and may prosecute or carry on any kind of business which each of the consolidating corporations was authorized by law to conduct. Former § 10, Business Corporations Law. Derivation.— L. 1890, Ch. 567, § 15; L. 1892, Ch. 691, § 10. Compare L. 1867, Ch. 960, § 4; L. 1873, Ch. 616, § 4'; L. 1884, Ch. 367, §§ 4, 7. See Merger, § 15, Stock Corporation Law, post. See 140 App. Div. 532; 80 Misc. 570. § 10. Transfer of property of old corporations to con- solidated corporations. — Upon the consummation of such act of consolidation, all the rights, privileges, fran- chises and interests of each of the corporations, parties to the same, and all the property, real, personal and mixed, and all the debts due on whatever account to either of them, as well as all stock subscriptions and other things in action belonging to either of them, shall be taken and deemed to be transferred to and vested in such new corporation, without further act or deed ; and all claims, demands, property and every other interest shall be as effectually the property of the new corpora- tion as they were of the former corporations, parties to such agreement and act; and the title to all real estate, taken by deed or otherwise, under the laws of this state, vested in either of such corporations, parties to such agreement and act, shall not be deemed to revert or be in any way impaired by reason of this chapter, or any- thing done by virtue thereof, but shall be vested in the new corporation by virtue of such act of consolidation : and all the rights, privileges, franchises and property of the corporations, parties to any consolidation heretofore made under this chapter, shall vest as fully in the new corporation thereby created as they were vested in the corporations, parties to such consolidations. Former § 11, Business Corporations Law. Derivation.— L. 1890, Ch. 567, § 16; L. 1892, Ch. 691, § 11; L. 1902, Ch. 457, § 1. §§ 11, 12 BUSINESS COKPOKATIONS LAW 15 Compare L. 1867, Ch. 960, § 5; L. 1873, Ch. 616, § 5; L. 1884, Cli 367, § 5. See 149 App. Div. 532; 80 Misc. 570, § II. Rights of creditors of old corporations. — The rights of creditors of any corporation that shall be so consolidated shall not in any manner be impaired, nor any liability or obligation for the payment of any money due or to become due to any person or persons, or any claim or demand for any cause existing against any such corporation or against any stockholder thereof be re- leased or impaired by any such consolidation ; but such new corporation shall succeed to and be held liable to pay and discharge all such debts and liabilities of each of the corporations consolidated in the same manner as if such new corporation had itself incurred the obligation or liability to pay such debt or damages, and the stock- holders of the respective corporations consolidated shall continue, subject to all the liabilities, claims and de- mands existing against them as such, at or before the consolidation; and no action or proceeding then pend- ing before any court or tribunal in which any corpora- tion that may be so consolidated is a party, or in which any such stockholder is a party, shall abate or be discon- tinued by reason of such consolidation, but may be prosecuted to iinal judgment, as though no consolidation had been entered into; or such new corporation may be substituted as a party in place of any corporation so con- solidated, by order of the court in which such action or proceeding may be pending. Former § 12, Business Corporations Law. Derivation.— L. 1890, Ch. 567, § 17; L. 1892, Ch. 691, § 12. Compare. L. 1867, Ch. 960, § 6; L. 1873, Ch. 616, § 6; L. 1884, Ch. 367, § 6. See 149 App. Div. 532. § 12. District steam corporations. — Any corporation now or hereafter incorporated for the purpose of sup- plying steam to consumers from a central station or sta- tions through pipes laid in the public streets, shall be 16 BUSINESS COKPORATIONS LAW § 12 known as a district steam corporation and upon the ap- plication in writing of the owner or occupant of any- building or premises, within one hundred feet of any street main laid down by any such corporation, and pay- ment by him of all money due from him to it, such cor- poration shall supply steam as may be required for heat- ing such building or premises, notwithstanding there may be rent or compensation in arrears for steam sup- plied, or for meter, pipe or fittings furnished to a former occupant thereof, unless such owner or occupant shall have undertaken or agreed with the former occupant to pay or to exonerate him from the payment of such ar- rears, and shall refuse or neglect to pay the same; and if, for the space of twenty days after such application, and the deposit, if required, of a reasonable sum to cover the cost of connection and two months' steam supply, the corporation shall refuse or neglect to supply steam as required, it shall forfeit to such applicant the sum of ten dollars and the further sum of five dollars for every day thereafter during which such refusal or neglect shall continue; but no such corporation shall be required to lay a service pipe for the purpose of supply- ing steam to any applicant where the ground in which such pipe is required to be laid v^hall be frozen, or other- wise present serious obstacles to laying the same, nor unless the applicant, if required, shall deposit in advance with the corporation a sum of money sufficient to pay for two months' steam supply and the cost of the necessary connections and of the erection of a meter and such other special apparatus as are required for use in connection with such steam supply, nor unless the applicant shall provide the space and right of way necessary for the erection, maintenance and use of such connections and apparatus, and signify his assent in writing to the rea- sonable regulations of the corporation with reference to the supply of steam to consumers. Former § 13, Business Corporations Law. Derivation.— L. 1890, Ch. 567, § 18; L. 1892, C!h. 691, § 13. Compare L. 1885, Ch. 549, § 1, 2. §§ 13, 14 BUSINESS. COBPOKATIONS LAW 17 § 13. Examination of meters by agent of district steam corporations. — ^Any such corporation may make an agreement with any qf its customers, by which any of its officers or agents shall be authorized at all rea- sonable times to enter any dwelling, store, building, room or place, supplied with steam by such corporation and occupied by such customer, for the purpose of in- specting and examining the meters, devices, pipes, fit- tings and appliances for supplying or regulating the sup- ply of steam, and for ascertaining the quantity of steam consumed, or the quantity of water resulting from the condensation of steam consumed. Every such agree- ment shall further provide that such officer or agent shall exhibit his written authority if requested by the occupant of such dwelling, store, building, room or place. Any person who shall directly or indirectly prevent or hinder such officer or agent from entering such dwelling, store, building, room or place, or from making such in- spection or examination, in violation of such agreement, shall forfeit to the corporation the sum of twenty-five dollars for each offense. Former § 14, Business Corporations Law. Derivation.— L. 1890, Ch. 567, § 19; L. 1892, Ch. 691, S 14. Compare L. 1880, Ch. 263, § 4. § 14. Entry' by agent of district steam corporation to cut off steam. — If any person or persons, corporation or association supplied with steam by any such corporation, shall neglect or refuse to pay the rent or remuneration for such steam, or for the meter, device, pipes, fittings or appliances, let by such corporation for supplying steam, or for ascertaining the quantity of steam consumed, or the quantity of water resulting from the condensation of the steam consumed, agreed upon or due for the same, as required by his, their or its contract with such corpora- tion, the latter may thereupon stop and prevent the steam from entering the premises of such person, per- sons, corporation or association, so neglecting or re- fusing to pay such rent or remuneration, and may also 2 18 BUSINESS CORPOKATIONS LAW § 15 in any case, in which a person is liable to pay a for- feiture, or to a fine or imprisonment, by reason of any act to or toward such corporation or its property for which such forfeiture, fine or penalty is imposed by law, stop and prevent the steam from entering the premises of the person so liable, or if such person be an officer or agent of any corporation or association, 4top and pre- vent the steam from entering the premises of such cor- poration or association. In all cases in which such cor- poration is authorized to stop and prevent the steam from entering any premises, it may, by its officers, agents or workmen, enter into or on such premises be- tween the hours of eight o'clock in the forenoon and six o'clock in the afternoon and cut ofif, disconnect, separate and carry away any meter, device, pipe, fitting or other property of the corporation ; and may cut off, disconnect and separate any meter, device, pipe or fitting, whether the property of the corporation or not, from the mains or pipes of such corporation. Former § \5, Business Corporations Law. Derivation.— L. 1890, Ch. 567, § 20; L. 1892, Ch. 691, § 15. Compare L. 1880, Ch. 263, § 5; L. 1883, Ch. 237. § 15. Water companies. — No corporation shall be formed under this chapter for the purpose of accumu- lating, storing, conducting, furnishing or supplying water for domestic, manufacturing or municipal purposes in the city of New York. Any corporation formed for the purpose of supplying any other city of the state with water, if unable to agree with the owners of any real property required for the purpose of the corporation for the purchase thereof may acquire title tlfereto by condemnation. Amended by L. 1909, Ch. 240, § 5. Former § 16, Business Corporations Law. Derivation.— L. 1892, Ch. 691, § 16. Compare L. 1880, Ch. 85; L. 1881, Ch. 472; L. 1887, Ch. 486. Corporations formed to supply water for general use must or- ganize under the Transportation Corporations Law, and are excluded § 16 BUSINESS COEPORATIONS LAW 19 from the provisions of the Business Corporations Law by § 2 of that law. See am,te, page 2. A corporation intending to supply water for manufacturing, power, or other private purpose would seem to be a business corporation. See opinion of Attorney-General, April 17, 1893, In re N. Y. & White Plains Suburban Water Co. § 1 6. Improvement corporations; right of condemna- tion. — Any corporation formed for the purpose of de- veloping or improving real property, which lays out for public use roads, streets, avenues or highways, upon or through its lands, if unable to agree with the owners of any real property required for the purpose of extending, continuing or connecting such roads, streerts, avenues or highways, for the purchase thereof, may acquire title thereto by condemnation in the manner prescribed by law ; provided such corporation has the consents of the owners of not less than one-half of all of the land which adjoins or abuts upon, or which will adjoin or abut upon, such roads, streets, avenues or highways, or their exten- sions, continuations or connections, when completed ; ana such corporation may lay out and establish such roads, streets, avenues or highways, and the extensions, con- tinuations or connections thereof, and may construct drains or sewers, and such bridges or culverts as may be necessary to maintain the grades of, or for the extension, continuation or connection of, the roads, streets, ave- nues or highways, so laid out; and may connect such roads, streets, avenues or highways, with or across roads, streets, avenues or highways, belonging to any other corporation or person, but may not disturb the estab- lished grades thereof. All lands so taken by condemna- tion shall be deemed to be acquired for a public use. Former § 17, Business Corporations Law. Derivation.— L. 1900, Ch. 518, § 1. 20 BUSINESS CORPOBATIONS LAW § 25 ARTICLE 3* Co-operative Corporations Section 25. Definition. 26. Incorporation. 27. Application of corporate law. 28. Directors; officers. 29. Amendment of certificate. 30. Stock and stockholders. 31. Written vote of stockholders. 32. Subscriptions of stock in other corporations. 33. Purchasing business of other corporations or persona, 34. Earnings; dividends. 35. Dissolution. 36. Annual report. 37. Existing co-operative corporations or associations. 38. Corporate name. 38a. Violation. § 25. Definition. — For the purposes of this article, the words " corporation," " company," " association," " ex- change," " society " or " union " shall be synonymous. A co-operative corporation, within the meaning of this article, shall be deemed to be a corporation organized for and conducting its business primarily for the mutual help and benefit of its shareholders, employees and patrons without profit and the earnings and savings of which are distributed, whether in the form of cash, stock or evi- dences of indebtedness or in services, proportionately and equitably among the persons for which it does busi- ness, upon the basis of the amount of sales, purchases or other services rendered to or by such persons, pro- vided, however, that such a corporation may pay not to exceed six ^r cent, dividends upon its capital stock and not to exceed six per cent, interest upon its indebted- ness. Added by L. 1913, Ch. 454; amended by L. 1920, Ch. 591. Old § 25 renumbered § 50. •Added by L. 1913, Ch. 454, § 2. Old article 3 renumbered 4 by § 1 of the same chapter. §§ 26-28 BUSINESS CORPORATIONS LAW 21 § 26. Incorporation. — Five or more persons may be- come a co-operative corporation, company, association, exchange, society or union for the purpose of conducting a general producing, manufacturing, warehousing or merchandising, processing and cleansing business, on the co-operative plan as limited in this article, in articles of, common use, including farm products, food supplies,^ farm machinery and supplies and articles of domestic and personal use, buying, selling or leasing homes or' farms for its members, or building, or conducting hous- ing or eating places co-operatively, by making, signing, acknowledging and filing a certificate in the form and manner prescribed by article two of this chapter. Added by L. 1913, Ch. 454; amended by- L. 1920, Ch. 591; L. 1921, Ch. 359. Old § 26 renumbered § 50. § 27. Application of corporate law. — The provisions of the business corporations law, the general corporation law and the stock corporation law shall apply to co-oper- ative corporations formed under this article, except where such provisions are in conflict with this article. Added by L. 1913, Ch. 454. § 28. Directors ; ofHcers. — Every such corporation shall be managed by a board of not less than five directors. The directors shall be elected by and from the stock- holders at such time and for such term as the by-laws may prescribe, and shall hold office until their successors are elected, and shall enter upon the discharge of their duties. The officers of every such corporation shall be a president, one or more vice-presidents, a secretary and a treasurer, who shall be elected annually by the direc- tors, and each of whom must be a director. The office of secretary and treasurer may be combined. A majority of the stockholders may, at any regular or special meet- ing, duly called, remove any director or officer for cause, and fill the vacancy. Added by L. 1913, Ch. 454. 22 BUSINESS COKPORATIONS LAW §§ 29-31 § 29. Amendment of certificate. — The stockholders of any such corporation may, by a three-fourths vote, at any regular meeting, or at any special meeting called for that purpose on ten days' notice to the stockholders, amend its certificate of incorporation. * The power to amend shall include the power to increase or diminish the amount of capital stock and the number of shares; but such amount shall not be diminished below the amount of paid-up capital at the time the amendment is adopted. The certificate of the action of such meeting shall be executed and filed in the manner prescribed by section sixty-four of the stock corporation law. Added by L. 1913, Ch. 454. § 30. Stock and stockholders. — The capital stock of any such corporation shall be divided into shares of the par value of five dollars each. A stockholder shall be entitled to but one vote, without regard to the amount of stock held by him. Certificates of stock shall not be issued to any subscriber until fully paid, but the by-laws of the corporation may allow subscribers to vote as stock- holders, if part of the stock subscribed for has been paid for in cash. No stock shall be transferred without the written consent of the corporation indorsed on the cer- tificate of stock. The corporation shall have the first right to purchase at par any stock of a stockholder of- fered for transfer or the stock of any deceased or retiring stockholder, or of any stockholder who shall have pur- chased of or sold to the corporation goods of the value of less than one hundred dollars in any one corporation year. Added by L. 1913, Ch. 454; amended by L. 1921, Ch. 359. § 31. Written vote of stockholders. — At any regularly called general or special meeting of the stockholders the written vote of an absent stockholder signed by him shall be received and counted, provided he shall have been §§ 32, 33 BUSINESS CORPORATIONS LAW 23 paeviously notified, in writing, of the exact motion or resolution upon which such vote is taken and a copy of the same is forwarded with and attached to his written vote. Added by L. 1913, Ch. 454. § 32, Subscription of stock in other corporations. — At any duly called regular or special meeting at which at least a majority of the stockholders may be present or represented a co-operative corporation may, by a major- ity vote of the stockholders present or represented, sub- scribe for shares and invest to an amount not to exceed twenty-five per centum of its capital, in the capital stock or certificate of indebtedness of any other co-operative corporation. Added by L. 1913, Ch. 454; amended by L. 1921, Ch. 359. § 33. Purchasing business of other corporations or persons. — Whenever a co-operative corporation shall purchase the business of another corporation, person or persons, it may pay for the same wholly or partly by the issue of shares of its capital stock to an amount which at par value would equal the fair market value of the business so purchased; and the transfer to the corpora- tion of such business at such valuation shall be equiva- lent to payment in cash for the shares of the stock so purchased. No such purchase shall be made until the proposal therefor shall have been submitted by the direc- tors to a meeting of the stockholders, together with an itemized inventory of assets and liabilities of the vendor, including the value of the good will as a separate item, and such proposal shall have been ratified by a vote of at least two-thirds of the total number of stockholders. If the cash value of such purchased business exceed one thousand dollars, the directors may hold the shares in excess of one thousand dollars in trust for the vendor and dispose of the same to such persons, and within such times, as may be agreed upon, and pay the proceeds 24 BUSINESS COEPOEATIONS LAW § 34 thereof as received from time to time to the former owner of such business. Added by L. 1913, Ch; 454. § 34. Earnings; dividends. — The directors, subject to revision by the stockholders at any general or special meeting, shall apportion the net earnings by first pay- ing dividends on the paid-up capital stock at a rate not exceeding six per centum per annum. They shall set aside not less than ten per centum of the net earnings for a reserve fund until the reserve fund shall equal thirty per centum of the paid-up capital stock. They may also annually set aside five per centum of the net earnings for an educational fund to be used in teaching co-operation. The remainder of the net earnings may in the discretion of the directors be distributed by uni- form dividend to members of the first class and members of the second class. Members of the first class shall in- clude stockholders and may by provision in the by-laws include employees. Members of the second class shall include non-stockholder patrons for whom the assoc.a- tion shall do business during any fiscal year of at least one hundred dollars. Dividends shall be paid on pur- chases amounting to one hundred dollars and over from or by members and on the amount earned by each em- ployee during the fiscal year, providing the by-laws designate that employees shall be members of the first class. Members of the first class shall be entitled to divi- dends at double the rate of dividends to which members of the second class shall be entitled. Dividends may be credited on account of such non-shareholders, in the pur- chase of capit^ stock of the corporation. In productive corporations, including creameries, canneries, elevators, factories, and the like, dividends shall be calculated on material delivered instead of on goods purchased. If the corporation be both a selling and a productive concern, the dividends may be on both material delivered and on goods purchased. §§ 35-37 BUSINESS COBPOKATIONS LAW 25 The net earnings of such corporation shall be dis- tributed at such times as the by-laws shall prescribe, but such distribution shall be made at least once every twelve months. Added by L. 1913, Ch. 454; amended by L. 1920, Ch. 104; L. 1921, Ch. 359. § 35. Dissolution. — If any such corporation, for five consecutive years, shall fail to declare a dividend upon the shares of its paid-up capital stock, five or more stock- holders may present a petition to the supreme court of a county in which the principal office of the corporation is situated, praying for its dissolution upon such ground. If upon the hearing the allegations of the petition are found to be true, the court may adjudge such corporation dissolved. Added by L. 1913, Ch. 454. § 36. Annual report. — Every co-operative corporation shall, annually, on or before the thirty-first day of Octo- ber, make a report to the department of farms and mar- kets, containing the name of the corporation, its princi- pal place of business, and generally a statement as to its business, showing the total amount of business trans- acted, the number of stockholders, the amount of capital stock subscribed for and paid in, the total expenses of operation, the amount of indebtedness or liabilities, and its profits and losses. Added by L. 1913, Ch. 454; amended by L. 1920, Ch. 104. § 37. Existing co-operative corporatioiis and associa- tions. — An existing co-operative corporation, company or association heretofore organized and doing business in this state may file with the secretary of state a writ- ten certificate signed and sworn to by the president and secretary to the fact that such corporation has, by a majority vote of its stockholders, decided to accept the provisions of this article, and thereupon such corporation 26 BUSINESS CORPORATIONS LAW §§ 38, 38-a shall be deemed to have abandoned its certificate filed under any other law and be subject to the provisions of this article. Added by L. 1913, Ch. 454. § 38. Corporate name. — All corporations hereafter formed under this article shall include in the name of the corporation the word " co-operative." No corporation shall be formed under this article unless there be affixed or prefixed to the name thereof, as required by section six of the general corporation law, such word or words or abbreviation as will indicate that it is a corporation as distinguished from a natural person, firm or corpora- tion. Except as authorized by article thirteen-A, or article twenty-one of the membership corporations law, or ar- ticle nine of the insurance law, no individual or partner- ship, nor any corporation or association formed other- wise than is provided in this article, shall adopt or use the word " co-operative " or any abbreviation or deriva- tion thereof, as a part of the name or designation under which such individual, partnership, corporation or asso- ciation shall do business in this state. Added by L. 1913, Ch. 454; amended by L. 1920, C!h. 591. § 38-a. Violation. — It shall be unlawful for any corpo- ration formed under the provisions of this article to carry on business contrary to or outside of the purpose for which it is formed, or to conduct business under this act otherwise than as a co-operative corporation. No such corporation, company, association, exchange, society or uniBn shall pay to exceed six per cent, divi- dends upon its capital stock or to exceed six per centum interest upon its indebtedness, or shall pay salaries to officers, directors, employees or agents greater than the reasonable value thereof for the purpose of absorbing the savings or earnings in violation of the provisions of this article. g 38^-a BUSINESS COKPOKATIONS LAW 27 Any person or corporation violating any of the provi- sions of this article, shall be guilty of a misdemeanor, punishable by a fine of not more than five hundred dol- lars, or by imprisonment for not more than one year, or by both such fine and imprisonment. Added by L. 1920, Ch. 591. 28 BUSINESS COEPORATIONS LAW §§ 50, 51 ARTICLE 4* Laws Repealed; When to Take Effect Section 50. Laws repealed. 51. When to take effect. § 50.* Laws repealed. — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is hereby repealed. § 51.* When to take effect.— This chapter shall take effect immediately. Schedule of Laws Repealed Laws of Chapter Section 1868 161 All 1871 820 All 1876 363 All 1887 561 All 1890 567 All 1892 691 All 1895 671 All 1896 369 All 1896 460 All 1900 518 All 1901 520 All 1902 438 All 1902 457 All 1903 525 All 1904 446 All 1907 ^6 All * Renumbered by L. 1913, Ch. 454, § 1. GENERAL CORPORATION LAW Laws of 1909, Chapter 28, entitled " AN ACT relating to corporations generally, constituting Chapter Twenty-three of the Consolidated Laws." Article 1. Short title; classification; definitions (§§ 1-3). 2. General provisions (§§ 4-47). 3. Change of name (§§ 60-66). 4. Sale of corporate real property (§§ 70-76). 5. Judicial supervision of corporation and of the officers and members thereof (§§ 90-92). 6. *Action for sequestration, action for dissolution and action to enforce individual liability of officers and members of corporation (§§ 100-116). 7. Action to annul corporation (§§ 130-136). 8. Action to dissolve moneyed corporation (§| 150-161). 9. Proceedings for voluntary dissolution of corporation (§§ 170-195). 9a. t Forfeiture of charter or revocation of certificate of au- thority, for maintaining a nuisance (§§ 200-202). 10. Dissolution of stock corporation without judicial pro- ceedings (§§ 220, 221). 10a. fProvisions applicable to_ temporary and permanent re- ceivers of corporations (§§ 225, 227). 11. Powers, duties and liabilities of receivers of corporation (§§ 230-278). 12. Provisions applicable to two or more of the foregoing proceedings or actions (§§ 300-316). 13. Alteration and repeal of charter of corporation (§§ 320, 321). 14. Laws repealed; construction; when to take effect (§§ 330-332). The original General Corporation Law was Chapter 35 of the "General Laws." L. 1890, Ch. 353. It was re-enacted in L. 1892, Ch. 687. * So in original. t Added by L. 1917, Ch. 292. t Added by L. 1909, Ch. 240, §§ 32 and 40. [29] 30 GENERAL COEPOKATION LAW Consolidators' Note. — "General Note. Various matters from the Code of Civil Procedure and independent statutes have been added to the General Corporation Law for the purpose of bringing together BO far as possible the provisions relating generally to corporations. Most of the added matter is in the nature of actions and proceed- ings relating to corporations. The provisions in, the Code of Civil Procedure relating to changing the name of a corporation and the sale of corporate real property have been inserted as well as the various articles of the Code of Civil Procedure relating to judicial supervision of corporations and officers and members thereof and ac- tions of sequestration, for dissolution, for annulment and proceedings for voluntary dissolution. The provisions in the Stock Corporation Law relating to the vol- untary dissolution of a stock corporation have been consolidated in this chapter as well as those relating to the dissolution of moneyed corporations which are now in the form of an independent statute. There has been added to the law as a separate article the pro- visions relating to the powers, duties and liabilities of receivers of corporations. This material was formerly scattered along the road of legislation from 1829 down to the present time. The provisions of the Revised Statutes were found in two separate chapters, one relating to receiv- ers appointed in proceedings for the voluntary dissolution of a cor- poration and the other relating to trustees of insolvent debtors. These were made applicable by the repealing act of 1880, Ch. 245. From 1829 down to the adoption of the Code of Civil Procedure, and after the adoption of the Code of Civil Procedure, various indepen- dent statutes were enacted upon the subject of insolvent corporations and receivers. All the statutory provisions applicable to the powers, duties and liabilities of receivers as found in this legislation have been consolidated in one article and by a suitable reference have been made applicable to actions and proceedings as now provided by law. The following independent acts have been disposed of: L. 1880, Ch. 537; L. 1883, Ch. 378; L. 1884, Ch. 285; L. 1S98, Ch. 522; L. 18QS, Ch. 584; L. 1904, Ch. 754. L. 1852, Ch. 71, has been treated in the Insurance Law. L. 1886, Ch. 271, was repealed by L. 1892, Ch. 687, and L. 1886, Ch. 310, has been repealed herein as unconstitutional pursuant to the authority of People v. O'Brien, 111 N. Y, 1." §§ 1-3 GENERAL COEPOEATION LAW 31 ARTICLE I Short Title ; Classification ; Definitions Section 1. Short title. 2. Classification of corporations. 3. Definitions. § I. Short title. — This chapter shall be known as the " General Corporation Law." Derivation.— L. 1890, Ch. 563, § 1; L. 1892, Ch. 687, I 1. § 2. Classification of corporations. — A corporation shall be either, 1. A municipal corporation, 2. A stock corporation, or 3. A non-stock corporation. I A stock corporation shall be either 1. A moneyed corporation, 2. A railroad or other transportation corporation, or 3. A business corporation. A non-stock corporation shall be either, 1. A religious corporation, 2. A membership corporation, or 3. Any corporation other than a stock corporation. A. reference in a general law to a class of corporations described in accordance with this classification shall in- clude all corporations theretofore formed belonging to such class. Derivation.— L. 1892, Ch. 687, § 2. Compare L. 1890, Ch. 563, § 2. See 146 App. Div. 263; 52 App. Div. 135, aff'd 169 N. Y. 587. § 3. Definitions. — A " municipal corporation " in- cludes a county, town, school district, village and city and any other territorial division of the state established by law with, powers of local government. 2. A " stock corporation " is a corporation having a 32 GENERAL COKPOEATION LAW § 3 capital stock divided into shares, and which is authorized by law to distribute to the holders thereof dividends or shares of the surplus profits of the corporation. A cor- poration is not a stock corporation because of having issued certificates called certificates of, stock, but which are in fact merely certificates of membership, and which is not authorized by law to distribute to its members any dividends or shares of profits arising from the operations of the corporation. 3. The term " non-stock corporation " includes every corporation other than a stock corporation. 4. A " moneyed corporation " is a corporation formed under or subject to the banking or the insurance law. 5. A " domestic corporation " is a corporation incor- porated by or under the laws of the state or colony of New York. Every corporation which is not a domestic corporation is a foreign corporation, except as provided by the code of civil procedure for the purpose of con- struing such code. 6. The term " directors," when used in relation to cor- porations, shall include trustees or other persons, by whatever name known, duly appointed or designated to manage the affairs of the corporation. 7. The term " certificate of incorporation " shall include articles of association or any other written instruments required by law to be filed, to effect the incorporation of a corporation, including a certified copy of an original certificate of incorporation filed for such purpose in pur- suance of law. 8. The term " member of a corporation " shall include every person having a right to vote at a meeting of the corporation for the election of directors, other than a person haviifg a right to vote only upon a proxy.* 9. The term " office of a corporation " means its prin- cipal office within the state, or principal place of business within the state if it has no principal office therein. * See note under § 23, General Corporation Law, po8t, as to the right to deprive stockliolders of tlie power to vote. § 3 GENERAL COEPOEATIOlir LAW 33 10. The term " business of a corporation," when used with reference to a non-stock corporation, includes the operations for the conduct of which it is incorporated. 11. The term "corporate law" or "laws," when used in any law forming a part of the consolidation of the general laws of the state of which this chapter is a part, means the general statutes of this state relating to cor- porations included in such consolidation. 12. The existence of an easement in real property ac- quired or reserved by a municipal corporation, a railroad corporation or other transportation corporation, shall not be deemed an encumbrance upon such real property under any law relating to investments in mortgages upon real property by corporations, trustees, executors, ad- ministrators, guardians or other persons holding trust funds, but the effect of such an easement upon the real property which it affects, shall be taken into considera- tion in determining the value thereof. Subdivision 12 added by L. 1914, Ch. 128. Derivation.— L. 1890, Ch. 563, § 2; L. 1892, Ch. 687, § 3; L. 1895, Ch. 672, § 1. See 203 N. Y. 209; 146 App. Div. 263; 144 App. Div. 26. 3 34 GENEBAL COEPOKATION LAW ARTICLE 2 General Provisions Section 4. Qualifications of incorporators. " 5. Filing and recording certificates of incorporation. 6. Corporate names. 7. Amended and supplemental certificates. 8. Lost or destroyed certificates. 9. Certificate and other papers as evidence; evidence of con- solidation. 10. Limitation of powers; provisions of certificate. 11. Grant of general powers. 12. Enlargement of limitations upon the amount of the property of non-stock corporations. 13. Acquisition, holding and disposition of additional real property. 14. Acquisition of property without the state. 15. Certificate of authority of a foreign corporation. 16. Proof to be filed before granting certificate. 16a. Certificate of surrender of authority. 17. Reincorporation of foreign moneyed corporations. 18. Papers to be filed upon reincorporation. 19. When reincorporation effective and effect thereof. 20. Acquisition of real property in this state by certain for- eign corporations. 21. Acquisition by foreign corporation of real property in this state. 22. Prohibition of banking powers. 23. Qualification of member^ as voters. 23a. Voting of stock by fiduciaries who disagree. 24. Cumulative voting. 25. Voting trust agreements. 26. Proxies. 27. Challenges. 28. Efliect of failure to elect directors. 29. Mode of calling special election of directors. 30. ModS of conducting special election of directors. 31. Qualification of voters and canvass of votes at special election. 32. Powers of supreme court respecting elections. 33. Stay of proceedings in actions collusively brought. 34. Quorum of directors and powers of majority. 35. Directors as trustees in case of dissolution. 36. Forfeiture for non-user. §§ 4, 5 GENERAL, COEPOBATION LAW 35 Section 37. Extension of corporate existence. 38. Revival of corporate existence. 39. Approv?,! of certificates of extension or revival; when required. 40. Extension when .stock is owned by another corporation. 41. Effect of extension. 42. When notice of lapse of time unnecessary. 43. As to acts of directors. 44. Political coiitributions prohibited; penalty. 45. Action by foreign corporation. 40. Action against foreign corporation. 47. Action against foreign corporation by another foreign corporation or non-resident. § 4. Qualifications of incorporators. — A certificate of incorporation must be executed by natural persons, who must be of full age, and at least two-thirds of them must be citizens of the United States and one of them a resi- dent of this state. This section shall not apply to a cor- poration formed by the reincorporation or consolidation of existing corporations, or to the reorganization of a corporation upon the sale of the property and franchises of a previously existing corporation or otherwise. Derivation.— L. 1892, Ch. 687, § 4; L. 1895, Ch. 672, § 1. Compare L. 1875, Ch. 611, § 3; L. 1890, Ch; 567, § 2. See 70 Misc. 274. § 5. Filing and recording certificates of incorporation. — I. Every certificate of incorporation and every amended or supplemental certificate, and every certificate which alters the provisions of any certificate of incorpo- ration or any amended or supplemental certificate here- after executed, shall be in the English language, and ex- cept as otherwise provided hy law, shall be filed in the office of the secretary of state, and shall be by him duly indexed in books specially provided therefor, and a cer- tified copy of such certificate or amended or supplemen- tal certificate with a certificate of the secretary of state of such filing, or a duplicate original of such certificate or amended or supplemental certificate shall be filed and recorded and indexed in the office of the clerk of the 36 GENEEAL CORPORATION LAW § 6 county in which the office of the corporation is to be located, or, if it be a non-stock corporation, and such county be not determined upon at the time of executing the certificate of incorporation, in such county clerk's office as the judge approving the certificate shall direct. Nothing herein contained, however, shall be deemed to prohibit a corporation from having and using a corpo- rate name or title in a language other than the English language if the same be in English letters or characters. All taxes required by law to be paid before or upon incor- poration and the fees for fiHng and recording such cer- tificate must be paid before filing. No corporation shall exercise any corporate powers or privileges until such taxes and fees have been paid. 2. Whenever under any law now or heretofore in force the certificate of incorporation of any corporation other than a stock corporation was or is required to be filed in more than one public office, a certified copy of such cer- tificate so filed in any one of such public offices may be filed in such other office with the like effect as if the original had been duly filed therein, provided, however, that no rights accrued prior to the filing of such copy shall be impaired or affected thereby, provided also, that such filing of a copy shall not cause a duplication or similarity of corporate names in violation of the next suc- ceeding section. Amended by L. 1913, Ch. 479. Subd. 1, amended by L. 1921, Ch. 131. Derivation.— L. 1892, Ch. 687, § 5; L. 1895, Ch. 672, § 1; L. 1902, Ch. 285, § 1; L. 1906, Ch. 531, § 1. Compare L. 1848, Ch. 40, §§ 1, 2; L. 1875, Ch. 611, § 4; L. 1881, Ch. 22, § 1; L. 1890, Ch. 563, § 3. Mandamus will lie to compel tbe secretary of state to file a proper certificate. See li8 N. Y. 591; 138 N. Y. 614; 140 App. Div. 578. § 6. Corporate names. — i. No certificate of incorpora- tion of a proposed corporation having the same name as a corporation authorized to do business under the laws of this state, or a name so nearly resembling it as to be calculated to deceive, shall be filed or recorded in any office for the purpose of effecting its incorporation, or § 7 GENEBAL CORPOBATION LAW 37 of authorizing it to do business in this state; nor shall any corporation except a religious, charitable or benevo- lent corporation or bar association be authorized to do business in this state unless its name has such word or words, abbreviation, affix or prefix, therein or thereto, as will clearly indicate that it is a corporation as distin- guished from a natural person, firm or copartnership ; or unless such corporation uses with its corporate name, in this state, such an affix or prefix. A corporation formed by the reincorporation, reorganization or consolidation of other corporations or upon the sale of the property or franchises of a corporation, or a corporation acquiring or becoming possessed of all the estate, property, rights, privileges and franchises of any other corporation or cor- porations by merger, may have the same name as the corporation or one of. the corporations to whose fran- chises it has succeeded. No corporation shall be here- after organized under the laws of this state with the word " trust," " bank," " banking," " insurance," " assur- ance," " indemnity," " guarantee," " guaranty," " title," " casualty," " surety," " fidelity," " bonding," " savings," " investment," " loan " or " benefit " as part of its name, except a corporation formed under the banking law or the insurance law. 2. No corporation, society or association, whether now existing or hereafter organized under or by virtue of the laws of this state, shall ever employ the words " Lucretia Mott " to designate, describe or name any hos- pital, infirmary or dispensary, or any part thereof, or any similar institution. Amended by L. 1911, Ch. 638; L. 1912, Ch. 2; L. 1913, Ch. 24; L. 1916, Ch. 222; L. 1917, Ch. 594. Derivation.— L. 1902, Ch. 9; L. 1907, Ch. 115, § 1. Compare L. 1875, Ch. 611, § 4; L. 1890, Ch. 563, § 4; L. 1892, Ch. 687, § 6; L. 1895, Ch. 672, § 1; L. 1900, Ch. 704, § 1. See 157 App. Div. 160; 7 Misc. 664. § 7. Amended and supplemental certificates. — If in the original or amended certificate of incorporation of any corporation, or if in a supplemental certificate of any cor- 38 GENEKAl. COKPOEATION LAW § 8 poration any informality exist, or if any such certificate contain any matter not authorized by law to be stated therein, or if the proof or acknowledgment thereof shall be defective, the corporators or directors of the corpora- tion may make and file an amended certificate correcting such informality or defect or striking out such unauthor- ized matter; and the certificate amended shall be deemed to be amended accordingly as of the date such amended certificate was filed, and upon the filing of such an amended certificate of incorporation, the corporation shall then for all purposes be deemed to be a corporation from the time of filing the original certificate. The supreme court may, upon due cause shown, and proof made, and upon notice to the attorney-general, and to such other persons as the court may direct, and upon such terms and conditions as it may impose, amend any certificate of incorporation which fails to express the true object and purpose of the corporation, so as to truly set forth such object and purpose. When an amended or supplemental certificate is filed, an entry shall be made upon the margin of the index and record of the original certificate of the date and place of record of every such amended certificate. The amendment of a certificate under this section shall be without prejudice to any pending action or proceed- ing, or to any rights previously accrued. Derivation.— L. 1890, Ch. 563, § 5; L. 1892, Ch. 687, § 7. Compare L. 1870, Ch. 135, §§ 1, 2; L. 1881, Ch. 468, § 11. See 72 Misc. 462. For form of Amended Certificate, see Form No. 6. § 8. Lost or destroyed certificates. — If either of the certificates of«incorporation shall be lost or destroyed after filing, a certified copy of the other certificate may be filed in the place of the one so lost or destroyed and as of the date of its original filing, and such certified copy shall have the same force and effect as the original cer- tificate had when filed. Derivation.— L. 1890, Ch. 563, § 6; L. 1892, Ch. 687, § 8. Compare L. 1888, Ch. 306, §§ 1, 2. § 9 GENERAL CORPORATION LAW 39 § 9. Certificate and other papers as evidence ; evidence of consolidation. — i . The certificate of incorporation of any corporation duly filed shall be presumptive evidence of its incorporation, and any amended certificate or other paper duly filed or recorded relating to the incorpora- tion of any corporation, or its existence or management, and containing facts required or authorized by law to be stated therein, shall be presumptive evidence of the ex- istence of such facts.* 2. Whenever, by the laws of any other state or terri- tory, or the dominion of Canada, a copy of the certificate of organization or incorporation or any other certificate, certified or exemplified by any ofificer or officers in such state or territory or dominion, is or shall be prima facie evidence of the due formation, creation, existence, organ- ization or capacity of any corporation or joint-stock com- pany, created, organized or located in such state, terri- tory or dominion, or claiming so to be, such certificate or certificates, duly exemplified, or a duly exemplified copy thereof, shall be received in all actions and proceed- ings in this state, in or before all courts and officers, with the same force and effect in all respects as prima facie evidence as aforesaid, as in such other state, territory or dominion.t 3. Where two or more corporations have been or shall hereafter be consolidated and merged into a new corpora- tion, a 'certificate of the secretary of state under his offi- cial seal concisely stating the names of the respective * Derivation.— L. 1890, Ch. 563, § 7; L. 1892, Ch. 687, § 9; L. 1895, Ch. 672, § 1. Compare L. 1811, Ch. 67, § 8; L. 1847, Ch. 210, § 3; L. 1848, Ch. 37, § 9; L. 1848, Ch. 40, § 9; L. 1848, Ch. 259, § 4; L. 1848, Ch. 265, last three lines of § 3; L. 1850, Ch. 140, § 3; L. 1853, Ch. 117, § 9; L. 1853, Ch. 135, § 11; L. 1854, Ch. 112, last clause of § 3; L. 1854, Ch. 232, § 9; L. 1857, Ch. 546, § 9; L. 1861, Ch. 149, § 4; L. 1867, Ch. 974, § 3; L. 1869, Ch. 917, last five lines § 2; L. 1872, Ch. 820, § 16; L. 1873, Ch. 469, § 5; L. 1874, Ch. 143, § 9; L. 1875, Ch. 611, last clause § 7; L. 1878, Ch. 203, § 3; L. 1885, Ch, 505, § 4; L. 1888, Ch. 462, § 20. t Detfvation.— L. 1877, Ch. 311, § 1. 40 GENERAL, COKPOBATION LAW §§ 10, 11 corporations consolidated, the dates of the filing of the certificates respectively of the incorporation of such cor- porations in his office, the object for which they were formed, including the nature and locality of their business as set forth in their respective incorpQration papers on file in his office, the date of the filing of the consolidation agreement and other proceedings in his office, the name of the new corporation formed by such consolidation and merger, the term of its corporate existence, the place where its principal office is situated and the amount of its capital stock, shall be presumptive and prima facie evidence in all actions and special proceedings for all purposes of the incorporation of the corporations so con- solidated, the incorporation of the new corporation by such consolidation and merger from the date of filing of said consolidation agreement and proceedings, and of the other facts so certified by him.f § 10. Limitation of powers; provisions of certificate. — I. No corporation shall possess or exercise any corporate powers not given by law, or not necessary to the exer- cise of the powers so given. 2. The certificate of incorporation of any corporation may contain any provision for the regulation of the busi- ness and the conduct of the ai¥airs of the corporation, and any limitation upon its powers, or upon the powers of its directors and stockholders, which does not exempt them from the performance of any obligation or the per- formance of any duty imposed by law. Derivation.— L. 1890, Ch. 563, § 9; L. 18©2, Ch. 687, § 10; X. 189'5, Ch. 672, § 1. See 205 N. Y. 445; 194 N. Y. 19, aff'g 126 App. Div. 657; 70 Misc. 674; 71 Misc. 51 ]« 80 Misc. 651. § II, Grant of general powers. — Every corporation as such has power, though not specified in the law under which it is incorporated : t Derivation.— L. 1899, Ch. 201, § 1. § 11 GENERAL COKPOBATION LAW 41 1. To have succession for the period specified in its certificate of incorporation or by law, and perpetually when no period is specified. 2. To have a common seal,* and alter the same at pleasure. 3. To acquire by grant, gift, purchase, devise or be- quest, to hold and to dispose of such property as the purposes of the corporation shall require, subject to such limitations as may be prescribed by law. 4. To appoint such officers and agents as its business shall require, and to fix their compensation, and 5. To make by-laws, not inconsistent with any exist- ing law, for the management of its property, the regula- tion of its affairs, and the transfer of its stock, if it has any, and the calling of meetings of its members. Such by-laws may also fix the amount of stock, which must be represented at meetings of the stockholders in order to constitute a quorum, unless otherwise provided by law. By-laws, duly adopted at a meeting of the mem- bers of the corporation shall control the action of its di- rectors. No by-law adopted by the board of directors regulating the election of directors or officers shall be valid unless published for at least once a week for two successive weeks in a newspaper in the county where the election is to be held, and at least thirty days before such election. Subdivisions four and five of this section shall not apply to municipal corporations. Derivatian.— L. 1890, Ch. 563, § 8; L. 1892, Ch. 687, § 11; L. 1895, Ch. 672, § 1. Compare L. 1811, Ch. 67, § 6; L. 1848, Ch. 37, §§ 7, 23; L. 1848, Ch. 40, §1 7, 26; L. 1848, Ch. 265, § 4; L. 1848, Ch. 319, § 9; L. 1853, Ch. 117, §§ 7, 26; L. 1854, Ch. 232, §§ 7, 26; L. 1854, Ch. 269, §§ 4, 6; * § 45. Seal, private as corporate seaL — An instrument or writing duly executed, in the corporate name of a corporation which shall not have adopted a corporate seal, by the proper officers of the corpora- tion under their private seals, shall be deemed to have been executed under the corporate seal. General Construction Law, § 45 (L. 1909, Ch. 27, § 45), formerly The Statutory Construction Law, § 13, part. For definition of " private seal," see General Construction Law, § 44. 42 GENERAL COBPOEATlOls LAW §§ 12, 13 L. 1857, Ch. 546, §§ 2, 7; L. 1857, Ch. 776, §§ 6, 8; L. 1859, Ch. 168, § 13; L. 1862, Ch. 438, § 3; L. 1867, Ch. 960, § 4; L. 1867, Ch. 971, § 9; L. 1872, Ch. 248, § 11; L. 1872, Ch. 820, § 18; L. 1873, Ch. 397, § 8; L. 1873, Ch. 616, § 4; L. 1874, Ch. 143, §§ 7, 15; L. 1874, Ch. 288, §§ 2, 3; L. 1875, Ch. 267, §§ 5, 10; L. 1875, Ch. 343, § 8; L. 1875, Ch. 611, § 2; L. 1877, Ch. 228, § 6; L. 1881, Ch. 468, last paragraph of § 4; L. 1882, Ch. 273, § 3; L. 1884, Ch. 367, § 4; L. 1886, Ch. 236, § 8; L. 1888, Ch. 293, § 7; L. 1888, Ch. 391, § 5. 1. The corporate existence may be extended. See § 37, post. 2. A corporate seal is not necessary to bind the corporation. Sea 94 N. Y. 145; 110 N. Y. 50. 3. The law places no limit upon the amount of property that may be held by a business corporation. 4. See § 30, Stock Corporation Law, ante. 5. The by-laws of the members are here distinguished from the by-laws of the directors. The former control the latter. See 127 App. Div. 41; 71 Misc. 512. See 205 N. Y. 448; 78 Misc. 99. For form of By-laws, see Form No. 7. § 12. Enlargement of limitations upon the amount of the property of non-stock corporations. — If any general or special law heretofore passed, or any certificate of in- corporation, shall limit the amount of property a corpo- ration other than a stock corporation may take or hold, such corporation may take and hold property of the value of ten million dollars or less, or the yearly in- come derived from which shall be one million dollars or less, notwithstanding any such limitations. In comput- ing the value of such property, no increase in value arising otherwise than from improvements made thereon shall be taken into account. Amended by L. 1909,-Ch. 276; L. 1911, C*. 581. Derivation.— L. 1890, Ch. 497, § 1; L. 1892, Ch. 687, § 12;. L. 18»4, Ch. 400, § 1. See 70 Misc. 30?. § 13. Acquisition of additional real property. — When any corporation, except a life insurance corporation, shall have sold or conveyed any part of its real property, the supreme court may, notwithstanding any restriction of a general or special law, authorize it to purchase and hold § 14 GENERAL CORPORATION LAW 43 from time to time other real property, upon satisfactory proof that the value of the property so purchased does not exceed the value of the property so sold and con- veyed within the three years next preceding the applica- tion. Derivation.— L. 1882, Ch. 290, § 1; L. 1890, Ch. 563, § 10; L. 1892, Ch. 687, § 13; L. 1906, Ch. 228, § 1. § 14. Acquisition, holding and disposition of property without the state. — Any domestic corporation transact- ing business or conducting operations in other states of the United States of America, in the District of Colum- bia, in any of the territories, districts, protectorates, de- pendencies or insular or other possessions or acquisitions thereof, or in any foreign countries, may acquire, hold, and dispose of such property therein, real, personal and mixed, as may be requisite for such corporation in the convenient transaction of its business or conduct of its operations. Any domestic corporation establishing or maintaining a charitable, philanthropic or educational in- stitution within this state may also carry on its work and establish or maintain one or more branches of such institution or an additional institution or additional institutions in any other states of the United States of America, in the District of Columbia, in any of the ter- ritories, districts, protectorates, dependencies or insular or other possessions or acquisitions thereof, or in any foreign countries, and for either of said purposes may take by devise or bequest, hold, purchase, mortgage, sell and convey or otherwise dispose of such real and per- sonal property without this state as may be requisite therefor. But nothing in this section contained shall be construed as exempting from taxation property to any additional amount than is now allowed to such corpora- tion under existing laws. Amended by L. 1920, Ch. 408. Derivation.— L. 1890, Ch. 563, § 11; L. 1892, Ch. 687, § 14; L. 1903, Ch. 178, § 1. 44 GENERAL COEPOEATION LAW § 15 Compare L. 1872, Ch. 146, § 1; L. 1875, Ch. 119; h. 1883, Ch. 361, § 1. The laws and decisions of the state or country where the real prop- erty is situated should be consulted upon this question. See 140 N. Y. 576; 14 Peters, 122; 83 Fed. Rep. 880; 91 id. 299; 96 id. 454;~ 172 U. S. 239; 153 U. S. 523; 132 U. S^ 282;. 134 U. S. 316; 2 R'y & Corp. L. J. 470. The policy to exclude a foreign corporation from a state, or to prohibit its holding land therein, must be expressed in some affirma- tive way. 100 U. S. 55; 101 U. S. 352. § 15. Certificate of authority of a foreign corporation. — No foreign stock corporation other than a moneyed corporation, shall do business in this state without hav- ing first procured from the secretary of state a certificate that it has complied with all the requirements of law to authorize it to do business in this state, and that the busi- ness of the corporation to be carried on in this state is such as may be lawfully carried on by a corporation in- corporated under the laws of this state for such or sim- ilar business, or if more than one kind of business, by two or more corporations so incorporated for such kinds of business respectively. The secretary of state shall de- liver such certificate to every such corporation so com- plying with the requirements of law. No foreign stock corporation doing business in this state shall maintain any action in this state upon any contract made by it in this state, unless prior to the making of such contract it shall have procured such certificate. This prohibition shall also apply to any assignee of such foreign stock corporation and to any person claiming under such as- signee or such foreign stock corporation or under either of them. No certificate of authority shall be granted to any foreign corporation having the same name as an ex- isting domestic corporation, or a name so nearly resem- bling it as to be calculated to deceive, nor to any foreign corporation, other than a moneyed or insurance corpo- ration, with the word " trust," " bank," " banking," " in- surance," " assurance," " indemnity," " guarantee," "guaranty," "title," "casualty," "surety," "fidelity," § 16 GENEBAL CORPORATION LAW 45 " bonding," " savings," " investment," " loan," or " bene- fit," as a part of its name. Former § 15, General Corporation Law, altered. Amended by L. 1917, Ch. 594. Derivation.— L. 1892, Ch. 687, § 15; L. 1901, Ch. 96, § 1; L. 1901, Ch. 538, § 1; L. 1904, Ch. 490. This section avoids the effect of those decisions which enabled for- eign stock corporations to sue in the courts of this state on a con- tract made here, provided the certificate was filed at any time before suit, though subsequent to the making of the contract, and also those decisions which permitted resident assignees of such claims to sue thereon. See 204 N. Y. 160, 234; 183 N. Y. 98; 180 N. Y. 533, aff'g 96 App. Div. 52; 155 N. Y. 373; 154 App. Div. 555; 146 App. Div. 572, 727, 757; 147 App. Div. 793; 145 App. Div. 569, 572; 143 App. Div. 652, 810; 141 Aft). Div. 775; -58 App. Div. 224; 79 Misc. 422; 71 Misc. 217, 431; 125 N. Y. Supp. 1110. § 1 6. Proof to be filed before granting certificate. — Be- fore granting such certificate the secretary of state shall require every such foreign corporation to file in his office a sworn copy in the English language of its charter or certificate of incorporation and a statement under its cor- porate seal, and the signature of its president, vice-presi- dent or other acting head, particularly setting forth the business or objects of the corporation which it is engaged in carrying on or which it proposes to carry on within the state, and a place within the state which is to be its principal place of business, and designating a person upon whom process against the corporation may be served within the state. The person so designated must have an office or place of business at the place where such cor- poration is to have its principal place of business within the state and such designation must specify such office or place of business of the said person so designated, and if it is within a city the street and street number if any, or other suitable designation of the particular locality. Such designation shall be accompanied with the written con- sent of the person designated and shall continue in force until revoked by an instrument in writing designating in like manner some other person upon whom process 46 GENEKAL CORPORATION LAW § 16-a against the corporation may be served in this state or until the filing in the same office of a written revocation of said consent executed by the person so designated. If the person so designated dies or removes from the place where the corporation has its principal place of business within the state, or files such revocation of his consent, and the corporation does not within thirty days after such death or removal or revocation of consent designate in like manner another person upon whom process against it may be served within the state, the secretary of state may revoke the authority of the cor- poration to do business within the state, and process against the corporation in an action upon any liability incurred within this state before such revocation, may, after such death or removal, or revocation of consent, and before another designation is made, be served upon the secretary of state. At the time of such service the plaintiff shall pay to the secretary of state two dollars, to be included in his taxable costs and disbursements, and the secretary of state shall forthwith mail a copy of such notice to such corporation if its address, or the ad- dress of any officer thereof, is known to him. The sec- retary of state may require the execution of any such designation, revocation or consent, to be authenticated as he deems proper and he may refuse to file it without such authentication. Former § 16 as altered. See § 377, Civil Practice Act. Derivation.— L. 1892, Ch. 687, § 16; L. 1895, Ch. 672, § 1. See 146 N. Y. 281; 136 X. Y. 343; 55 App. Div. 20. Even though no designation be made, as provided in the above sec- tion, personal service "of a summons may be made upon a foreign corporation by delivering a copy to any of the officers specified in i 229, Civil Practice Act. See also subdivisions 3 and 4, idem. See 189 N. Y. 241; 87 N. Y. 137; 87 N. Y. 355; 145 App. Div. 569, 572. For form of above Proof, etc., see Form No. 8. § i6-a. Certificate of surrender of aythority. — A foreign corporation having authority under section sixteen of this chapter to do business in this state, may surrender § 16-a GEITEEAL CORPORATION LAW 47 such authority by filing in the office of the secretary of state, a certificate under its corporate seal and the sig- nature of its president, vice-president, or other acting head, setting forth : 1. The name of the corporation and the state under whose laws it is formed. 2. The date on which it received authority to do busi- ness in this state. 3. Revoking its designation of the person upon whom process against the corporation may be served in this state. 4. That it surrenders its authority to do business in this state and that, as evidence of such surrender, it re- turns to the secretary of state, for cancellation, its cer- tificate of authority to do business in this state, or that such certificate has been lost or destroyed. Proof of execution in the form prescribed by section three hundred and nine of the real property law shall be attached. The certificate of authority shall be attached to the certificate of surrender, unless such certifi- cate of authority has been lost or destroyed, in which event, there shall be attached an affidavit of the president, vice-president, secretary, or other officer of the corporation, to the effect that such certificate has been lost or destroyed, as the case mav be. On the filing of such certificate, the secretary of state shall make a note of the filing thereof on his index of corporations and thereupon the authority of the cor- poration to do business within this state shall cease and determine, and no such corporation doing business in this state after the filing of such certificate of surrender of authority shall maintain any action in this state upon any contract made by it in this state subsequent to the filing of such certificate of surrender of authority. The filing of such certificate shall not, however, aflFect any action pending at the time of such surrender, or affect any action in the state upon any contract made by the corporation in this state before the filing of the certifi- cate of surrender of authority. Process against the cor- 48 GENEKAL COEPOEATIOIT LAW §§ 17, 18 poration in an action upon any liability incurred within this state before the filing of such certificate of surrender of authority may, after the filing thereof, be served upon the secretary of state. At the time of such service, the plaintiff shall pay to the secretary of state two dollars to be included in his taxable costs and disbursements, and the secretary of state shall forthwith mail a copy of said process to such corporation, if its address or the address of any officer thereof is known to him. Added by L. 1918, Ch. 193. § 17. Reincorporation of foreign moneyed corporations. — Any moneyed corporation duly organized by or under the laws of any state of the United States, and having an oifice or doing business in this state, may file, if a bank- ing corporation or authorized to make loans upon pledges or deposits, in the office of the superintendent of banks, and if an insurance corporation in the office of the super- intendent of insurance, the documents described in sec- tion eighteen of this chapter, and such documents shall be recorded as original certificates of incorporation are required by law to be recorded. The fees for filing and recording such documents, together with the tax, if any, required by law to be paid before the incorporation of a domestic company of the same class, must be paid be- fore filing. Derivation.— L. 1900, Ch. 733, § 1. § 18. Papers to be filed upon reincorporation. — The documents to be filed by any such corporation shall in- clude, 1. A copy of#ts charter, certificate of incorporation, or other document constituting it a body corporate, with such amendments, if any, as are desired by the corpora- tion or are required by the laws of New York, authen- ticated as an original certificate of incorporation is re- quired to be authenticated; 2. A declaration of its desire to become a corporation § 19 GENERAL COEPORATION LAW 49 of this state and of its submission to the laws of this state, duly executed by the authority of the body in which its corporate powers are vested. 3. A certificate of the superintendent of that depart- ment in which these papers are filed that the charter, certificate of incorporation or other constituent docu- ment, with its proposed amendments, if any, as filed, is in all respects consistent with the laws of this state re- lating to domestic corporations of the same class; that the corporation applicant has complied with all condi- tions imposed by its laws upon domestic corporations of the same class beginning business in this state, with the exception of any provisions concerning the residence of a majority of the corporators, trustees, or directors of such corporation; that its name is not the same with the name of any domestic corporation, nor likely to be confounded with any such name, and that it has paid all fees and taxes due from it to the state, including the tax, if any, imposed by this state upon the original incorpora- tion of a company of the same class. Derivation.— L. 1900, Ch. 733, § 2. § 19. When reincorporation effected and effect thereof. — From the date of fiHng these documents the corpora- tion shall become and be a corporation of this state, and shall be subject to all the laws of this state appHcable to corporations of the same class; but its existence and powers as such corporation shall terminate if it shall fail at any time for one month to maintain an office within the state at which an authorized officer or agent shall be present at all reasonable business hours, prepared to ex- hibit the books of the company to the proper authorities of this state and to receive service of process ; or if it shall fail within two years to terminate its corporate existence derived from any other state, by surrender of its charter or by dissolution. Derivation.— L. 1900, Ch. 733, § 3. 4 50 GENERAL CORPORATION LAW §§ 20-22 § 20. Acquisition of real property in this state by cer- tain foreign corporations. — A.ny foreign corporation do- ing business in this state and created under the laws ot the United States, or of any state or territory thereof, or of any foreign state or nation which borders the United States of America and which by its laws confers similar privileges on corporations created by the laws of the state of New York, may acquire and hold such real property in this state as may be necessary for its cor- porate purposes in the transaction of its business in this state, and convey the same by deed or otherwise in the same manner as a domestic corporation. Amended by L. 1910, Ch. 68. Former § 17, General Corporation Law. Derivation.— L. 1890, Ch. 563, § 12; L. 1892, Ch. 687, § 17. Compare L. 1887, Ch. 450, § 1. See 136 N. Y. 347; 128 N. Y. 205. § 21. Acquisition by foreign corporation of real prop- erty in this state. — Any foreign corporation may pur- chase at a sale upon the foreclosure of any mortgage held by it, or, upon any judgment or decree for debts due it, or, upon any settlement to secure such debts, any real property within this state covered by or subject to such mortgage, judgment, decree or settlement, and may take by devise any real property situated within this state and hold the same for not exceeding five years from the date of such purchase, or from the time when the right to the possession thereof vests in such devisee, and convey it by deed or otherwise in the same manner as a domestic corporation. Former § 18, General Corporation Law. Derivation.— L. i^90, Ch. 563, § 13; L. 1892, Ch. 687, § 18; L. 1894, Ch. 136, § 1. Compare L. 1877, Ch. 158, § 1. See 157 App. Div. 842; 149 App. Div. 326. § 22. Prohibition of banking powers. — No corporation, domestic or foreign, other than a corporation formed § 23 GENERAL CORPORATION LAW 51 under or subject to the banking laws of this state or of the United States, except as permitted by such laws, shall by any implication or construction be deemed to possess the power of carrying on the business of dis- counting bills, notes or other evidences of debt, of re- ceiving deposits, of buying and selling bills of exchange or of issuing bills, notes or other evidences of debt for circulation as money, or of engaging in any other form of banking; nor shall any such corporation, except an express company having contracts with railroad com- panies for the operation of an express service upon the lines of such railroad companies, or a transatlantic steam- ship company, or a telegraph company, or a corporation incorporated prior to the year eighteen hundred and fifty, to promote the welfare of emigrants, possess the power of receiving money for transmission or of transmitting the same, by draft, traveler's check, money order or otherwise. Amended by L. 1911, Ch. 771. Former § 19, General Corporation Law. Derivation.— L. 1890, Ch. 563, § 14; L. 1892, Ch. 687, § 19; L. 1904, Ch. 236, § 1. See 80 Mise. 651. § 23. Qualification of members as voters. — Unless otherwise provided in the certificate of incorporation, every stockholder of record of a stock corporation shall be entitled at every meeting of the corporation to one vote for every share of stock standing in his name on the books of the corporation ; and at every meeting of a non- stock corporation, every member, unless disqualified by the by-laws, shall be entitled to one vote. The stock- holders of a stock corporation, by a by-law adopted by vote at any annual meeting, or at any special meeting duly called for such purpose, may prescribe a period, not exceeding forty days prior to meetings of the stock- holders, during which no transfer of stock on the books of the corporation may be made. Except in cases of ex- press trust, or in which other provision shall have been 52 GENERAL CORPORATION LAW § 23-a made by written agreement between the parties, the record holder of stock which shall be held by him as security, or which shall actually belong to another, upon demand therefor and payment of necessary expenses thereof, shall issue to such pledgor or to such actual owner of such stock, a proxy to vote thereon. No mem- ber of a corporation shall sell his vote or issue a proxy to vote to any person for any sum of money or anything of value. The books and papers containing the record of membership of the corporation shall be produced at any meeting of its members upon the request of any member. If the right to vote at any such meeting shall be chal- lenged, the inspectors of election, or other persons pre- siding thereat, shall require such books, if they can be had, to be produced as evidence of the right of the person challenged to vote at such meeting, and all persons who may appear from such books to be members of the cor- poration may vote at such meeting in person or by proxy, subject to the provisions of this chapter. Part of former § 20, General Corporation Law. Derivation.— L. 1890, Ch. 564, § 54; L. 1892, Ch. 687, § 20; L. 1901, Ch. 355, § 1, part. Compare L. 1853, Ch. 135, § 8; L. 1880, Ch. 510, § .2. See 148 N. Y. 519; 138 N. Y. 557; 133 App. Div. 756; 41 App. Div. 57; 69 Misc. 276. The right to deprive stock of voting power. — There is nothing in the statute to prevent the inclusion in a certificate of incorporation of a provision limiting the voting rights of the holders of preferred stock and excluding them from voting for directors. The Secretary of State is not justified in refusing to file such a certificate, and man- damus will lie to compel him to accept it. People ex rel. Browne v. Koenig, 133 App. Div. 756. § 23-a. Voting of stock by fiduciaries who disagree. — Where stock is^egistered on the books of a corporation in the name of, or has passed by operation of law or by virtue of any last will and testament to, two or more fiduciaries, and dispute shall arise among them in re- spect to the voting therein, the said shares of stock may be voted by a majority of such fiduciaries, and in such manner and for such purpose as such majority shall § 24 GENERAL, CORPOBATION LAW 53 authorize and direct, and if the number of fiduciaries shall be even and they shall be equally divided upon the question of voting such stock, it shall be lawful for the court having jurisdiction of their accounts upon petition filed by any such fiduciaries, or by any party in interest, to direct the voting of such stock in the manner which in the opinion of such court will be for the best interests of the parties beneficially interested in the stock. But the above provisions of this section shall not, after this act takes effect, apply in any case where the instrument or order of the court appointing such fiduciaries shall otherwise direct the manner of voting any such stock, nor to any fiduciaries appointed by court prior to May sixth, nineteen hundred and eighteen, or by last will and testament of a decedent whose death occurred prior to such date, nor to corporate stock at any time transferred to or held by fiduciaries so appointed. Added by L. 1918, Ch. 472; amended by L. 1919, Ch. 466; L. 1920, Ch. 595. § 24. Cumulative voting. — The certificate of incorpo- ration of any stock corporation may provide that at all elections of directors of such corporation, each stock- holder shall be entitled to as many votes as shall equal the number of his shares of stock multiplied by the num- ber of directors to be elected, and that he may cast all of such votes for a single director or may distribute them among the number to be voted for, or any two or more of them as he may see fit, which right, when exercised, shall be termed cumulative voting. The stockholders of a corporation heretofore formed, who, by the provisions of laws existing on April thirtieth, eighteen hundred and ninety-one, were entitled to the exercise of such right, may hereafter exercise such right according to the pro- vision of this section. Part of former § 20, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 20; L. 1901, Ch. 355, § 1, part. Compare L. 1875, Ch. 611, § 26. See note to § 23, General Corporation Law. 54 GENERAL COEPOKATION LAW §§ 25, 26 § 25. Voting trust agreements. — A stockholder may, by agreement in writing, transfer his stock to any person or persons for the purpose of vesting in him or them the right to vote thereon for a time not exceeding five years upon terms and conditions stated, pursuant to which such person or persons shall act; every other stock- holder, upon his request therefor, may, by a like agree- ment in writing, also transfer his stock to the same per- son or persons and thereupon may participate in the terms, conditions and privileges of such agreement; the certificates of stock so transferred shall be surrendered and canceled and certificates therefor issued to such transferee or transferees in which it shall appear that they are issued pursuant to such agreement and in the entry of such transferee or transferees as owners of such stock in the proper books of said corporation that fact shall also be noted and thereupon he or they may vote upon the stock so transferred during the time in such agreement specified ; a duplicate of every such agreement shall be filed in the office of the corporation where its principal business is transacted and be open to the in- spection of any stockholder, daily, during business hours. Part of former § 20, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 20; L. 1901, Ch. 355, § 1, part. While cases are not lacking as to the validity and direct effect of voting trust agreements, there seems to be no other case directly in point upon the question considered in O'Grady v. United States Independent Telephone Co., 71 Atl. 1040, 21 L. R. A. (N. S.) 732, as to the status of the holder of voting trust certificates as a stockholder for purposes other than voting the stock. In this case it was held that the holder of such a certificate is the beneficial owner of the stock represented by it in the hands of the voting trustees, and that being such beneficial owner, he is a stockholder and therefore entijtled to institute the proceedings provided for the winding up of an insolvent corporation. See also Thompson v. Stanley, 20 N. Y. Supp. 317. For form of Voting Trust Agreement, see Form No. 9. § 26. Proxies. — Every member of a corporation, ex- cept a religious corporation, entitled to vote at any meet- ing thereof may so vote by proxy. § 27 GENERAL, COKPOBATION LAW 55 • No officer, clerk, teller or bookkeeper of a corporation formed under or subject to the banking law shall act as proxy for any stockholder at any meeting of any such corporation. Every proxy must be executed in writing by the mem- ber himself, or by his duly authorized attorney. No proxy hereafter made shall be valid after the expiration of eleven months from the date of its execution unless the member executing it shall have specified therein the length of time it is to continue in force, which shall be for some limited period. Every proxy shall be revocable at the pleasure of the person executing it ; but a corpora- tion having no capital stock may prescribe in its by-laws the persons who may act as proxies for members, and the length of time for which proxies may be executed. Former § 21, General Corporation Law. Derivation.— L. 1890, Ch. 564, § 54; L. 1892, Ch. 687, § 21. For form of Proxy, see Form No. 10. § 27. Challenges. — Every member of a corporation offering to vote at any election or meeting of the corpo- ration shall, if required by an inspector of election or other officer presiding at such election or meeting, or by any other member present, take and subscribe the fol- lowing oath : " I do solemnly swear that in voting at this election I have not, either directly, indirectly or im- pliedly received any promise or any sum of money or anything of value to influence the giving of my vote or votes at this meeting or as a consideration therefor." Any person offering to vote as proxy for any other per- son shall present his proxy and, if so required, take and subscribe the following oath: "I do solemnly swear that I have not, either directly, indirectly or impliedly, given any promise or any sum of money or anything of value to induce the giving of a prox/ to me to vote at this election, or received any promise or any sum of money or anything of value to influence the giving of my vote at this meeting, or as a consideration therefor." The inspectors or persons presiding at the election may 56 GENERAL COEPOEATION LAW §§ 28, 29 administer such oath, and all such oaths and proxies shall be filed in the office of the corporation. Former § 22, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 22; L. 1895, Ch. 672, § 1; L. 1901, Ch. 355, § 1. Compare L. 1890, Ch. 564, § 54. § 28. Effect of failure to elect directors. — If the di- rectors shall not be elected on the day designated in the by-laws, or by law, the corporation shall not for that reason be dissolved; but every director shall continue to hold his office and discharge his duties until his suc- cessor has been elected. Former § 23, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 23. Compare L. 1796, Ch. 43, 1i 11; L. 1811, Ch. 67, § 4; L. 1848, Ch. 37, § 4; L. 1848, Ch. 40, § 4; L. 1848, Ch. 319, § 4; L. 1853, Ch. 117, § 4 L. 1853, Ch. 135, § 5; L. 1854, Ch. 232, §§ 4, 5; L. 1857, Ch. 546, § 4 L. 1872, Ch. 820, § 12; L. 1873, Ch. 397, § 4; L. 1874, Ch. 143, § 4 L. 1875, Ch. 267, § 5; L. 1875, Ch. 611, § 27; L. 1886, Ch. 236, § 6 L. 1887, Ch. 317, § 6; L. 1887, Ch. 501, § 3; L. 1888, Ch. 293, § 4 L. 1890, Ch. 563, § 18. See 205 N. Y. 464; 72 Miac. 2. § 29. Mode of calling special election of directors. — If the election has not been held on the day so designated, the directors shall forthwith call a meeting of the mem- bers of the corporation for the purpose of electing di- rectors, of which meeting notice shall be given in the same manner as of the annual meeting for the election of directors.* If such meeting shall not be so called within one month, or, if held, shall result in a failure to elect di- rectors, any member of the corporation may call a meet- ing for the purpose of electing directors by publishing a notice 'of the time and place of holding such meeting at least once in each week for two successive weeks im- mediately preceding the election, in a newspaper pub- ' See § 25, Stock Corporation Law, post. §§ 30, 31 GENEBAX, COBPOEATION lAW 57 lished in the county where the election is to be held and in such other manner as may be prescribed in the by- laws for the publication of notice of the annual meeting, and by serving upon each member, either personally or by mail, directed to him at his last known post-office ad- dress, a copy of such notice at least two weeks before the meeting. Former § 24, General Corporatwn Law. Derivation.— L. 1892, Ch. 687, § 24. Compare L. 1885, Ch. 489, §§ 3, 4; L. 1890, Ch. 564, §§ 53, 54. § 30. Mode of conducting special election of directors. — Such meeting shall be held at the office of the corpora- tion, or if it has none, at the place in this state where its principal business has been transacted, or if access to such office or place is denied or cannot be had, at some other place in the city, village or town where such office or place is or was located. At such meeting the members attending shall consti- tute a quorum. They may elect inspectors of election and directors and adopt by-laws providing for future an- nual meetings and election of directors, if the corporation has no such by-laws, and transact any other business which may be transacted at an annual meeting of the members of the corporation. Former § 25, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 25. Compare L. 1890, Ch. 564, § 53. See 144 App. Div. 26. § 31. Qualifications of voters and canvass of votes at special elections. — In the absence at such meeting of the books of the corporation showing who are members thereof, each person, before voting, shall present his sworn statement setting forth that he is a member of the corporation; and if a stock corporation, the number of shares of stock owned by him and standing in his name on the books of the corporation, and, if known to him, the whole number of shares of stock of the corporation 58 GENERAL COKPOEATION LAW §§ 32, 33 outstanding. On filing such statement, he may vote as a member of the corporation; and if a stock corporation, he may vote on the shares of stocic appearing in such statement to be owned by him and standing in his name on the books of the corporation. • The inspectors shall return and file such statements, with a certificate of the result of the election, verified by them, in the office of the clerk of the county in which such election is held, and the persons so elected shall be the directors of the corporation. Former § 26, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 26. Compare L. 1890, Ch. 564 See 31 N. Y. 550. § 32. Powers of supreme court respecting elections. — The supreme court shall, upon the application of any person or corporation aggrieved by or complaining of any election of any corporation, or any proceeding, act or matter touching the same, upon notice thereof to the ad- verse party, or to those to be affected thereby, forthwith and in a summary way, hear the affidavits, proofs and allegations of the parties, or otherwise inquire into the matters or causes of complaint, and establish the election or order a new election, or make such order and give such relief as right and justice may require. Former § 27, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 27. Compare L. 1890, Ch. 563, § 15. See 204 N. Y. 38; 186 N. Y. 216; 138 N. Y. 557; 156 App. Div. 389; 145 App. Div. 362, 629; 144 App. Div. 482; 134 App. Div. 442; 115 App. Div. 821; 105 App. Div. 629; 61 Hun, 338. For -form of above Petition, see Form No. 11. § 33- Stay of proceedings in actions coUusively brought. — If an action is brought against a corporation by the procurement or default of its directors, or any of them, to enforce any claim or obligation declared void by law, or to which the corporation has a valid defense, § 34 GENERAL CORPORATION LAW 59 and such action is in the interest or for the benefit of any director, and the corporation has by his connivance made default in such action, or consented to the validity of such claim or obligation, any member of the corporation may apply to the supreme court, upon affidavit, setting forth the facts, for a stay of proceedings in such action, and on proof of the facts in such further manner and upon such notice as the court may direct, it may stay such proceedings or set aside and vacate the same, or grant such other relief as may seem proper, and which will not injuriously affect an innocent party, who, with- out notice of such wrongdoing and for a valuable con- sideration, has acquired rights under such proceedings. Former § 28, General Corporation Law. Derivation.— L. 1890, Ch. 563, § 16; L. 189i2, Ch. 687, § 28. Compare L. 1885, Ch. 489. See 148 App. Div. 12. § 34. Quorum of directors and powers of majority. — The affairs of every corporation shall be managed by its board of directors, at least one of whom shall be a citizen of the United States and a resident of this state. Unless otherwise provided a majority of the board of directors of a corporation at a meeting duly assembled shall be necessary to constitute a quorum for the trans- action of business and the act of a majority of the direc- tors present at a meeting at which a quorum is present shall be the act of the board of directors. The members of a corporation may in by-laws fix the number of direc- tors necessary to constitute a c[uorum at a number less than a majority of the board, but at least equal to one- third of its number. Subject to the by-laws, if any, adopted by members of a corporation, the directors may make necessary by-laws of the corporation. Amended by L. 1917, Ch. 538. Former § 29, General Corporation Law. Derivation.— L. 1890, Ch. 563, § 17; L. 1892, Ch. 687, § 29; L. 1901, Ch. 214, § 1; L. 1904, Ch. 737, § 1. See 70 Misc. 631. 60 GENERAL COEPORATIOIT LAW §§ 35-37 § 35. Directors as trustees in case of dissolution. — Upon the dissolution of any corporation, its directors, unless other persons shall be appointed by the legisla- ture, or by some court of competent jurisdiction, shall be the trustees of its creditors, stockholders or members, and shall have full power to settle its affairs, collect and pay outstanding debts, and divide among the persons entitled thereto the money and other property remain- ing after payment of debts and necessary expenses. Such trustees shall have authority to sue for and re- cover the debts and property of the corporation, by their name as such trustees, and shall jointly and severally be personally liable to its creditors, stockholders or mem- bers, to the extent of its property and effects that shall come into their hands. Former § 30, General Corporation Law. Derivation.— L. 1890, Ch. 563, §§ 19, 20; L. 1892, Ch. 687, § 30. See § 240, General Corporation Law. See 142 App. Div. 797. § 36. Forfeiture for non-user. — If any corporation, ex- cept a railroad, turnpike, plank-road or bridge corpora- tion, shall not organize and commence the transaction of its business or undertake the discharge of its corporate duties within two years from the date of its incorpora- tion, its corporate powers shall cease. Former § 31, General Corporation Law. Derivation.— L. 1890, Ch. 563, § 21; L. 18912, Ch. 687, § 31, See 157 App. Div. 841; 78 Misc. 97. § 37. Extension of corporate existence. — Any domestic corporation at any time before the expiration thereof, may extend tfte term of its existence beyond the time specified in its original certificate of incorporation, or by law, or in any certificate of extension of corporate exist- ence, by the consent of the stockholders owning two- thirds in amount of its capital stock, or if not a stock corporation, by the consent of two-thirds of its members, which consent shall be given either in writing or by vote § 37 GENEEAL CORPORATION LAW 61 at a special meeting of the stockholders called for that purpose, upon the same notice as that required for the annual meetings of the corporation; and a certificate under the seal of the corporation that such consent was given by the stockholders in writing, or that it was given by a vote at a meeting as aforesaid, shall be subscribed and acknowledged by the president or a vice-president, and by the secretary or an assistant secretary of the cor- poration, and if a corporation formed under or subject to the banking law shall be filed in the office of the super- intendent of banks, if an insurance corporation, in the office of the superintendent of insurance, and otherwise in the office of the secretary of state, and shall* by such officer be duly indexed in a book provided therefor, and a certified copy of such certificate, with a certificate of such officer of such filing, or a duplicate original of such certificate, shall be filed and recorded and indexed in the office of the clerk of the county wherein the corporation has its principal place of business, and shall be noted in the margin of the record of the original certificates of such corporation, if any, in such offices, and thereafter the term of the existence of such corporation shall be extended as designated in such certificate. The certificate of incorporation of any corporation whose duration is limited by such certificate or by law, may require that the consent of the stockholders own- ing a greater percentage than two-thirds of the stock, if a stock corporation, or of more than two-thirds of the members, if a non-stock corporation, shall be requisite to effect an extension of corporate existence as author- ized by this section. Amended by L. 1913, Ch. 306; L. 1921, Ch. 131. Part of former § 32, General Corporation Law. Derivation.— L. 1890, Ch. 563, § 22; L. 1892, Ch. 687, § 32; L. 1900, Ch. 177, § 1; L. 1901, Ch. 355, § 1; L. 1905, Ch. 256, § 1, part. Compare L. 1857, Ch. 29, § 2; L. 1866, Ch. 697, § 5; L. 1867, Ch. 12; L. 1867, Ch. 937; L. 1874, Ch. 240; L. 1875, Ch. 58, § 1; L. 1875, Ch. 611, § 29. VoT form of Conseutt and Certificate of Consent or Vote to Extend Corporate Existence, see Form No. 12. 62 GENERAL COEPOKATION .LAW §§ 38, 39 § 38. Revival of corporate esfistence.— If the term of existence of any domestic corporation shall have expired and it shall be made satisfactorily to appear to the su- preme court that such corporation was legally organized pursuant to any lavif of this state, and" that it shall have issued its bonds payable at a date beyond the date fixed in its charter or certificate of incorporation for the ex- piration of its corporate existence, and such bonds shall be unmatured and unpaid, or, if a bank, incorporated under a general law of this state, that shall have issued any other obligations or shall have incurred any other indebtedness which at the date of the application shall be unsatisfied or unpaid, the supreme court may, upon the application of any person interested and upon such notice to such other parties as the court may require, by order, authorize the filing of a certificate reviving the existence of such corporation, upon such conditions and with such limitations as such order shall specify, and extending such corporate existence for a term not ex- ceeding the term for which it was originally incorpo- rated. Upon filing such certificate in the same manner as certificates of extension of corporate existence duly issued before the expiration of the existence of a domes- tic corporation are authorized by law to be filed, such corporate existence shall be revived and extended in pur- suance of the terms of such order, but such revival and extension shall not afifect any litigation commenced after such expiration and pending at the time of such revival. Amended by L. 1911, Ch. 63; L. 1921, Ch. 131. Ch. 13L Part of former § 32, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 32; L. 1900, Ch. 177, § 1; L. 1901, Ch. 355, § 1; if 1905, Ch. 256, § 1, part. § 39. Approval of certificates of extension or revival; when required. — In the case of a corporation formed under or subject to the banking law, no certificate of ex- tension or revival shall be filed or recorded unless it shall have indorsed thereon the written approval of the super- §§ 40, 41 GENERAL CORPORATION LAW 63 intendent of banks; or, if an insurance corporation, un- less it shall have indorsed thereon the written approval of the superintendent of insurance; and, if a turnpike or bridge corporation, it shall not be filed unless it shall have indorsed thereon or annexed thereto a certified copy of a resolution of the board of supervisors of each county in which such turnpike or bridge is located, approving of and authorizing such extension. Part of former § 32, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 32; L. 1900, Ch. 177, § 1; L. 1901, Oh. 355, § 1; L. 1905, Ch. 256, § 1, part. § 40. Extension when stock is owned by another cor- poration. — If all the stock of a corporation other than a corporation formed under or subject to the banking law, or an insurance corporation, or a turnpike, plank-road or bridge corporation shall be lawfully owned by another stock corporation entitled by law to take a surrender and merger thereof, the corporate existence of such corpora- tion whose stock is so owned may be extended at any time for the term of the corporate existence of the pos- sessor corporation, by filing in the office or offices in which the original certificate or certificates of incorpora- tion of the first-mentioned corporation were filed a certifi- cate of such extension executed by its president and sec- retary and by such corporation owning all the shares of its capital stock. Part of former § 32, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 32; L. 1900, Ch. 177, § 1; L. 1901, Ch. 355, § 1; L. 1905, Ch. 256, § 1, part. § 41. Effect of extension. — Every corporation extend- ing its corporate existence under this chapter or under any general law of the state shall thereafter be subject to the provisions of this chapter and of such general law, notwithstanding any special provisions in its charter, and shall thereafter be deemed to be incorporated under the general laws of the state relating to the incorporation of a corporation for the purpose of carrying on the business 64 GENERAL CORPORATION LAW §§ 42, 43 in which it is engaged, and shall be subject to the pro- visions of such law. Part of former § 32, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 32; L. 1900, Ch. 177, § 1; L, 1901, Ch. 355, § 1; L. 1905, Ch. 256, § 1, part. • § 42. When notice or lapse of time unnecessary. — Whenever under the provisions of any of the corporate laws a corporation is authorized to take any action after notice to its members or after the lapse of a prescribed period of time, such action may be taken without notice and without the lapse of any period of time, if such action be authorized or approved, and such requirements be waived in writing by every member of such corpora- tion, or by his attorney thereunto authorized. Former § 38, General Corporation Law. Derivation.— L. 1895, Ch. 672, § 2. J! or forms of Waiver of Notice, see Forms Nos. 13 anS, 14. § 43. As to acts of directors. — Whenever, under the provisions of any of the corporate laws, a corporation is authorized to take any action by the agreement or action of its directors, managers or trustees, such agreement or action may be taken by such directors, regularly con- vened as a board, and acting by a majority of a quorum, except when otherwise expressly required by law or the by-laws of the corporation and any such agreement shall be executed in behalf of the corporation by such officers as shall be designated by the board of directors, mana- gers or trustees. At any meeting at which every mem- ber of the board of directors shall be present, though held without notice, any business may be transacted which might have been transacted if the meeting had been duly calltd. Except when otherwise required by law or the by-laws of the corporation, special meetings of the mem- bers of the corporation may be called in the same manner as the annual meeting thereof. Former § 39, General Corporation Law. Derivation.— L. 1896, Ch. 672, § 2; L. 1901, Ch. 355, § 1. § 44 GENERAL CORPORATION LAW 65 § 44. Political contributions prohibited ; penalty. — No corporation or joint-stock association doing business in this state, except a corporation or association organized or maintained for political purposes only, shall directly or indirectly pay or use or offer, consent or agree to pay or use any money or property for or in aid of any political party, committee or organization, or for, or in aid of, any corporation, joint-stock or other association organized or maintained for political purposes, or for, or in aid of, any candidate for political office or for nomination for such office, or for any political purpose whatever, or for the reimbursement or indemnification of any person for moneys or property so used. Any officer, director, stock- holder, attorney or agent of any corporation or joint- stock association which violates any of the provisions of this section, who participates in, aids, abets or advises or consents to any such violation, and any person who solicits or knowingly receives any money or property in violation of this section, shall be guilty of a misdemeanor and punishable by imprisonment in a penitentiary or county jail for not more than one year and a fine of not more than one thousand dollars. No person shall be ex- cused from attending and testifying, or producing any books, papers or other documents before any court or magistrate, upon any investigation, proceeding or trial, for a violation of any of the provisions of this section, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on ac- count of any transaction, matter or thing concerning which he may so testify or produce evidence, docu- mentary or otherwise, and no testimony so given or pro- duced shall be received against him upon any criminal investigation or proceeding. Former § 41, General Corporation Law. Derivation.— L. 1906, Ch. 239, § 1. 5 66 GENERAL CORPORATION LAW §§ 45-47 § 45. Action by foreign corporation. — An action may be maintained by a foreign corporation, in like manner, and subject to the same regulations, as where the action is brought by a domestic corporation, except as other- wise specially prescribed by law. Butia foreign corpora- tion cannot maintain an action, founded upon an act, or upon a liability or obligation, express or implied, arising out of, or made and entered into in consideration of, an act, which the laws of the state forbid a corporation or association of individuals to do, without express author- ity of law. This section does not affect the validity of a meeting of the stockholders or directors of a foreign cor- poration, held within the state, where such a meeting is authorized by the laws of the state, country, or govern- ment by or under which the corporation is created ; or of an act, done at such a meeting, which is not in conflict with the same laws, or the laws of the state. Added by L. 1920, Ch. 916. § 46. Action against foreign corporation. — An action against a foreign corporation may be maintained by a resident of the state, or by a domestic corporation, for any cause of action. Added by L. 1920, Ch. 916. § 47. Action against foreign corporation by another foreign corporation or non-resident. — An action against a foreign corporation may be maintained by another for- eign corporation, or by a non-resident, in one of the fol- lowing cases only: 1. Where the action is brought to recover damages for the breach of a contract made within the state, or re- lating to property ^ituated within the state, at the time of the making thereof. 2. Where it is brought to recover real property situ- ated within the state, or a chattel, which is replevied within the state. 3. Where the cause of action arose within the state. § 47 GENEEAL COBPORATION LAW 67 except where the object of the action is to affect the title to real property situated without the state. 4. Where a foreign corporation is doing business within this state. Within the meaning of this section, a foreign corpora- tion shall not include a corporation located in this state and created by or under the laws of the United States. Added by L. 1920, Ch. 916. 68 GENEKAL COEPOKATION LAW § 60 ARTICLE 3 Change of Name Section 60. Petition by corporation to cliange name. 61. Contents of petition. 62. Notice of presentation of petition. 63. Order authorizing change. • 64. When change to take effect. 65. Substitution of new name in pending action or pro- ceeding. 66. Change of name of business, transportation and mem- bership corporations. § 6o. Petition by corporation to change name. — A peti- tion to assume another corporate name may be made by a domestic corporation other than a corporation organized under the business corporation law, the transportation corporation law or the membership corporations law, or organized under any law repealed by either of those laws, whether incorporated by a general or special law, to the supreme court at a special term thereof, held in the judicial district in which its principal business office shall be situated, or, if it be other than a stock corpora- tion, at a special term held in the judicial district in which its certificate of incorporation is filed or recorded, or in which its principal property is situated, or in which its principal operations are or theretofore have been con- ducted. If it be a banking, insurance or railroad cor- poration, the petition must be authorized by a resolution of the directors of the corporation, and approved, if a banking corporation, by the superintendent of banks; if an insurance corporation, by the superintendent of in- surance, and if a railroad corporation, by the public ser- vice commission. The petition to change the name of any other corporation must have annexed thereto a cer- tificate of the secretary of state, that the name which such corporation proposes to assume is not the name of any other corporation appearing on his index of corpora- tions as authorized to do business under the laws of the §§ 61, 62 GENERAL COBPOKATION LAW 69 State of New York, or a name which he deems so nearly resembling it, as to be calculated to deceive. Amended by L. 1910, Ch. 296; L. 1917, Ch. 177. § 6i. Contents of petition. — The petition must be in writing, signed by the petitioner and verified in like man- ner as a pleading in a court of record, and must specify the grounds of the application, its present name, and the name it proposes to assume, which must not be the name of any other corporation, or a name so nearly resembling it as to be calculated to deceive; and if it be a railroad corporation, a corporation having banking powers or the power to make loans upon pledges or deposits, or to make insurances, that the petition has been duly author- ized by a resolution of the directors of the corporation and approved by the proper officer. § 62. Notice of presentation of petition. — If the peti- tion be made by a corporation located elsewhere than in the city and county of New York, notice of the presenta- tion thereof shall be published once in each week for three successive weeks in a newspaper of every county in which such corporation shall have a business office, or if it has no business office, of the county in which its principal corporate property is situated, or in which its operations are or theretofore have been principally con- ducted, which newspaper, if it be a banking corporation, shall be designated by the superintendent of banks, if an insurance corporation, by the superintendent of insur- ance, or if a railroad corporation, by the public service commission. In the city and county of New York such notice shall be published once in each week for three successive weeks in two daily newspapers published in such county. If the petition be made by a domestic cor- poration organized under or subject to the religious or membership corporations law the court may dispense with the publication of the notice of the presentation of such petition or require notice of such presentation to be 70 GENERAL COEPORATION LAW § 63 given to such persons and in such manner as the court thinks proper. A copy of the petition and notice of mo- tion shall be filed with the secretary of state, and the proposed name shall thereupon be reserved for said cor- poration until three weeks after the date of such motion, and until three weeks after the date of any adjournment of such motion if notice of such adjournment shall be filed with the secretary of state, and no certificate of incorporation of a proposed corporation, having the same name as the name proposed in such petition, or a name so nearly resembling it as to be calculated to deceive, shall be filed in any office for the purpose of effecting its incorporation, and no corporation formed without the state of New York having the same name or a name so nearly resembling it as to be calculated to deceive shall be given authority to do business in this state, Amended by L. 1910, Ch. 296. § 63. Order authorizing change. — If the court to which the petition is presented is satisfied thereby, or by the affidavit and certificate presented therewith, that the peti- tion is true, and that there is no reasonable objection to the change of name proposed and that the petition has been duly authorized and that notice of the presentation of the petition, if required by law, has been made, the court shall make an order authorizing the petitioner to assume the name proposed on a day specified therein, not less than thirty days after the entry of the order. The order shall be directed to be entered and the papers on which it was granted to be filed within ten days there- after in thet>ffice of the clerk of the county in which its certificate of incorporation, if any, shall be filed, or if there be none filed, in which its principal office shall be located, or if it has no business office in the county in which its principal property it situated, or in which its operations are or theretofore have been principally con- ducted, or in the office of the clerk of the county in which § 64 GENERAL COBPOKATIOIT LAW 71 the special term granting the order is held; and that a certified copy of such order shall, within ten days after the entry thereof, be filed in the office of the secretary of state; and also, if it be a banking corporation, in the office of the superintendent of banks, or if it be an insur- ance corporation, in the office of the superintendent of insurance, or if it be a railroad corporation, in the offices of the public service commissions. Such order shall also direct the publication, within ten days after the entry thereof of a copy thereof, in a designated news- paper, in the county in which the order is directed to be entered, once in each week for four successive weeks. The court may dispense with the publication of a copy of such order and require notice to be given to such per- sons and in such manner as it thinks proper if the peti- tion be made by a domestic corporation organized under or subject to the religious or membership corporations law. Amended by L. 1910, Ch. 296. § 64. When change to take effect. — If the order shall be fully complied with, and within forty days after the making of the order, an affidavit of the publication thereof shall be .filed and recorded in the office in which the order is entered, and filed in each office in which certified copies thereof are required to be filed, if any, the petitioner shall, on and after the day specified for that purpose in the order, be known by the name which is thereby authorized to be assumed, and by no other name. No proceedings had prior to April fourth, eighteen hun- dred and ninety-four, under sections two thousand four hundred and fourteen and two thousand four hundred and fifteen of the code of civil procedure for the change of the name of a corporation, shall be invalid by reason of the non-fihng of an affidavit of the publication of the order changing such name within twenty days from the date thereof. And no proceedings heretofore had under the provi- sions of article three, chapter twenty-three, consolidated 72 GENERAL CORPORATION LAW §§ 65, 66 laws, for the change of the name of a corporation, shall be invalid by reason of the non-filing and recording of such affidavit of the publication of the order changing such name within forty days from the making of such order. « Amended by L. 1913, Ch. 721; L. 1921, Ch. 131. § 65. Substitution of new name in pending action or proceeding. — An action or special proceeding, civil or criminal, commenced by or against a corporation whose name is so changed shall not abate, nor shall any relief, recovery or other proceeding therein be prevented, im- peded or impaired in consequence of such change of name. The plaintiff in the action or the party instituting the special proceeding, or the people, as the case re- quires, may at any time, obtain an order amending any .of the papers or proceedings therein, by the substitu- tion of the new name, without costs and without preju- dice to the action or proceeding. § 66. Change of name of business, transportation and membership corporations. — Any corporation now exist- ing or hereafter organized under the business corpora- tions law, the transportation corporations law or the membership corporations law, or organized under any law repealed by either of those laws, may at any time change its name, provided such change has been author- ized by vote of the holders of record of at least two- thirds of the entire capital stock issued and outstanding, irrespective of class or classes of stock; or if the corpo- ration is one authorized to issue any or all of its shares without nominal or par value, then by vote of the holders of record of at least two-thirds of the entire number of shares issued and outstanding, irrespective of class or classes of shares ; or if it is a nonstock corporation, then by vote of at least two-thirds of its members, unless such corporation has more than five hiandred members, in which case by a vote of at least two-thirds of its mem- § 66 GENEEAIi COEPOKATION LAW 73 ■ bers present, in person or by proxy, at the meeting. A vote required by this section shall be taken at a meeting of the stockholders, shareholders or members specially called for that purpose. The notice of the meeting shall state the time and place thereof, the present name of the corporation and the name it proposes to assume. Such notice shall be signed by the president or vice-president and the secretary and shall be published once a week for two successive weeks in a newspaper published and cir- culating in the county wherein its principal business of- fice is located, or if it has no business office, in the county in which its principal corporate property is situated, and a copy of such notice shall on or before the day of the first publication be filed in the office of the secretary of state, and a copy shall on or before the first day of pub- lication be either served personally on each stockholder, shareholder or member, or mailed to him at his last known post-office address. The proposed name shall, be reserved for such corporation by the secretary of state for a period of forty days from the date of the filing of the copy of the notice in his office. No action shall be taken by the stockholders, shareholders or members to change the name of the corporation unless there shall be pre- sented to the meeting a certificate in duplicate of the sec- retary of state that the name which such corporation proposes to assume is not the name of any other corpora- tion appearing on his index of corporations as authorized to do business under the laws of the state of New York, or a name which he deems so nearly resembling it as to be calculated to deceive. No such corporation shall assume a corporate name which shall contain any word or words prohibited by law to a corporation of like character. Unless the corpora- tion is a charitable or benevolent corporation, the name which the corporation proposes to assume shall have such word or words, abbreviation, affix or prefix therein or thereto, as will clearly indicate that it is a corporation as distinguished from a natural person, firm, association or copartnership. 74 GENEBAL COBPOBATIOK LAW § 66 Upon the adoption of a resolution by the stockholders,, shareholders or members to change the name of such cor- poration to the name proposed in said notice, the cor- poration shall file in the office of the secretary of state and in the office of the clerk of the coukty in which its principal business office is located, or if it has no busi- ness office, in the office of the clerk of the county in which its principal corporate property is situated, a cer- tificate signed, verified and acknowledged by its presi- dent or vice-president and secretary. The verification shall be in the form required of a pleading in a court of record and the acknowledgment shall be in the form re- quired of a deed to be recorded within this state. Such certificate shall state and set forth the resolution adopted by the stockholders, shareholders or members, the date of the adoption of such resolution, the date on which the certificate of incorporation was filed in the office of the secretary of state, the law under which the corporation was organized, the name under which the said corpora- tion was originally incorporated, and any subsequent changes therein, and the name which the corporation desires to adopt. There shall be attached thereto the af- fidavits of service and publication of the notice of the meeting and the certificate of the secretary of state herein provided for. The corporation shall publish a copy of the resolution adopted at such meeting once a week for two successive weeks in the newspaper in which the notice of the meeting was published. The corporation shall file in the office of the secretary of state within forty days after the copy of the notice of meeting was filed in his office an affidavit of publication of the resolu- tion herein required. On and after the day on which, such affidavit is^filed, the corporation shall be known by the name adopted in such resolution and by no other name. Any action or special proceeding, civil or criminal, commenced by or against a corporation whose name is so changed shall not abate, nor shall any relief, recovery of other proceedings therein be prevented, impeded or § 66 GENERAL COBPOBATION LAW 75 impaired in consequence of such change of name. The plaintiff in the action or the party instituting the special proceeding, or the people, as the case requires, may at any time obtain an order amending any of the papers or proceedings therein, by the substitution of the new name, without costs and without prejudice to the action or pro- ceeding. Added by L. i917, Ch. 177; amended by L. 1919, Ch. 309. For form of Certificate of Proceedings of Meeting to Authorise Change of Name, see Form No. 15. 76 GENEKAIi COBPOEATIOK LAW §§ 70, 71 ARTICLE 4 Sale of Corporate Real Property Section 70. Application of this article. 71. Petition. 72. Hearing on application. 73. Order to sell, mortgage or lease. 74. Insolvent corporation. 75. Service of notices. 76. Practice in eases not herein provided for. § 70, Application of this article. — Whenever any cor- poration is required by law to make application to the court for leave to mortgage, lease or sell its real estate^ the proceeding therefor shall be had pursuant to the pro- visions of this article. § 71. Petition. — The proceeding shall be instituted by the presentation to the supreme court of the district or the county court of the county where the real property, or some part of it, is situated, by the corporation appli- cant, of a petition setting forth the following facts: 1. The name of the corporation and of its directors, trustees or managers, and of its principal officers, and their places of residence. 2. The business of the corporation or the object or pur- pose of its incorporation and a reference to the statute under which it was incorporated. 3. A description of the real property to be sold, mort- gaged or leased, by metes and bounds, with reasonable certainty. 4. That the interests of the corporation will be pro- moted by the sale, mortgage or lease, of the real prop- erty specified, and a concise statement of the reasons therefor. 5. That such sale, mortgage or lease has been author- ized, by a vote of at least two-thirds of the directors, trustees or managers of the corporation at a meeting §§ 72, 73 GENERAL CORPOBATION LAW 77 thereof, duly called and held, and a copy of the resolu- tion granting such authority. 6. The market value of the remaining real property of the corporation and the cash value of its personal assets, and the total amount of its debts and liabilities, and how secured, if at all. 7. The application proposed to be made of the moneys realized from such sale, mortgage or lease. 8. Where the consent of the shareholders, stockhold- ers or members of the corporation is required by law to be first obtained, a statement that such consent has been given, and a copy of the consent, or a certified transcript of the record of the meeting at which it was given, shall be annexed to the petition. 9. A demand for leave to mortgage, lease or sell the real estate described. The petition shall be verified in the same manner as a verified pleading in an action in a court of record. § 72. Hearing on application. — Upon presentation of the petition, the court may immediately proceed to hear the application, or it may, in its discretion, direct that notice of the application shall be given to any person interested therein, as a member, stockholder, officer or creditor of the corporation or otherwise, in which case the application shall be heard at the time and place speci- fi.ed in such notice, and the court may in any case appoint a referee to take the proofs and report the same to the court, with his opinion thereon. Any person, whose in- terest may be affected by the proceeding, may appear upon the hearing and show cause why the application should not be granted. § 73. Order to sell, mortgage or lease. — Upon the hear- ing of the application, if it shall appear, to the satisfac- tion of the court, that the interests of the corporation will be promoted thereby, an order may be granted au- thorizing it to sell, mortgage or lease the real property described in the petition, or any part thereof, for such 78 GENERAL CORPOEATION LAW §§ 74-76 sum, and upon such terms as the court may prescribe, and directing what disposition shall be made of the pro- ceeds of such sale, mortgage or lease. § 74. Insolvent corporation. — If the cSrporation is in- solvent, or its property and assets are insufficient to fully liquidate its debts and liabilities, the application shall not be granted, unless all the creditors of the corporation have been served with a notice of the time and place at which the application will be heard. § 75. Service of notices. — Service of notices, provided for in this article, may be made either personally or, in case of absence, by leaving the same at the place of resi- dence of the person to be served, with some person of mature age and discretion, at least eight days before the hearing of the application, or by mailing the same, duly enveloped and addressed and postage paid, at least six- teen days before such hearing. § 76. Practice in cases not herein provided for. — In all applications made under this article, where the mode or manner of conducting any or all of the proceedings thereon is not expressly provided for, the court before whom such application may be pending, shall have the power to make all the necessary orders and give the proper directions to carry into effect the object and in- tent of this article, or of any act authorizing the sale of corporate real property, and the practice in such cases shall conform, as near as may be, to the ordinary prac- tice in such court. § 90 GENEBAL COBPORATION LAW 79 ARTICLE 5 Judicial Supervision of Corporation and of the Officers and Members Thereof Section 90. Action against officers of corporation for misconduct. 91. Who may bring an action. 91a.* Actions against officers by corporation, receiver or trustee. 92. Visitatorial power over corporation not affected by this article. § go. Action against officers of corporation for mis- conduct. — An action may be maintained against one or more trustees, directors, managers, or other officers of a corporation, to procure a judgment for the following purposes, or so much thereof as the case requires : 1. Compelling the defendants to account for their official conduct, including any neglect of or failure to per- form their duties, in the management and disposition of the funds and property, committed to their charge. 2. Compelling them to pay to the corporation, which they represent, or to its creditors, any money, and the value of any property, which they have acquired to them- selves, or transferred to others, or lost, or wasted, by or through any neglect of or failure to perform or by other violation of their duties. 3. Suspending a defendant from exercising his office, where it appears that he has abused his trust. 4. Removing a defendant from his office, upon proof or conviction of misconduct, and directing a new elec- tion to be held by the body or board duly authorized to hold the same, in order to supply the vacancy created by the removal; or, where there is no such body or board, or where all the members thereof are removed, directing the removal to be reported to the governor, who may, with the advice and consent of the senate, fill the vacan- cies. •Added by L. 1913, Oh. 633. 80 GENERAL CORPORATION LAW §§ 91, 91-a 5. Setting aside an alienation of property, made by one or more trustees, directors, managers or other officers of a corporation, contrary to a provision of law, or for a purpose foreign to the lawful business and objects of the corporation, where the alienee knew the* purpose of the alienation. 6. Restraining and preventing such an alienation, where it is threatened, or where there is good reason to apprehend that it will be made. 7. The court must, upon the application of either party, make an order directing the trial by a jury of the issue of neglect or failure of defendants to perform their duties; and for that purpose the questions to be tried must be prepared and settled as prescribed in section nine hundred and seventy of the code of civil procedure. As to any litigation pending prior to September one, nineteen hundred and seven, the provisions of this sec- tion as they existed prior to that date shall apply. See 201 N. Y. 202; 196 N. Y. 102; 155 App. Div. 737; 152 App. Div. 467; 145 App. Div. 826; 133 App. Div. 122. § 91. Who may bring such an action. — An action may be brought, as prescribed in the last section, by the attor- ney-general in behalf of the people of the state, or, ex- cept where the action is brought for the purpose speci- fied in subdivision third or fourth of that section, by a creditor of the corporation, or by a trustee, director, manager, or other officer of the corporation, having a general superintendence of its concerns. See 201 N. Y. 202; 196 N. Y. 102; 155 App. Div. 740; 152 App. Div. 467; 150 App. Div. 706; 145 App. Div. 826; 133 App. Div. 122. § gi-a. Actions against officers by corporation, or re- ceiver or trustee. — The supreme court shall also have and exercise jurisdiction in equity, at the suit of a corpora- tion, or of a receiver, or trustee in bankruptcy thereof, to compel one or more trustees, directors, managers or other officers of the corporation to account for injury to § 92 GENERAL CORPOEATION LAW 81 or loss of the funds, assets or property of the corpora- tion, caused by or through any neglect or failure of the defendants to perform, or for violation of, their duties. The court must, upon the application of either party, make an order directing the trial by jury of the issue of negligence, and for that purpose the questions to be tried must be prepared and settled as prescribed in sec- tion nine hundred and seventh of the code of civil pro- cedure. Added by L. 1913, C!h. 633. § 92. Visitatorial power over corporation not affected by this article. — This article does not divest or impair any visitatorial power over a corporation, which is vested by statute in a corporate body, or a public officer. 6 82 GENERAL COEPOEATIOW LAW § 100 ARTICLE 6 Action for Sequestration, Action for .Dissolution and Action to Enforce Individual Liability of Officer and Member of Corporation Section 100. Action by judgment creditor for sequestration. 1(11. Action to dissolve a corporation. 102. Who may bring action to dissolve a corporation. 103. Temporary injunction in action authorized by this article. 104. Temporary receiver. 105. Additional powers and duties of temporary receiver. 106. Permanent receiver. 107. Additional duties and liabilities of permanent receiver. 108. Application for appointment of receiver. 109. Officers and stockholders may be made parties in action brought by creditor. 110. Separate action may be brought against officers and stockholders. 111. Proceedings in such actions. 112. Distribution of property of corporation by judgment in actions under this article. 113. Recovery of stock subscriptions. 114. Liability of directors and stockholders. 115. Effect of this article. 116. Entry of judgment and filing certified copies thereof. § 100. Action by judgment creditor for sequestration. — Where final judgment for a sum of money has been rendered against a corporation created by or under the laws of the state, and an execution issued thereupon to the sheriff of the county, where the corporation transacts its general business, or where its principal office is located, has b*n returned wholly or partly unsatisfied, the judgment creditor may maintain an action to procure a judgment sequestrating the property of the corpora- tion, and providing for a distribution thereof, as pre- scribed in section one hundred and twelve of this chap- ter. See 155 App. Div. 332. §§ 101, 102 GENERAL COBPOKATION LAW 83 § loi. Action to dissolve a corporation. — In either of the following cases, an action to procure a judgment, dis- solving a corporation, created by or under the laws of the state, and forfeiting its corporate rights, privileges and franchises, may be maintained, as prescribed in the next section: 1. Where the corporation has remained insolvent for at least one year. 2. Where it has neglected or refused, for at least one year, to pay and discharge its notes or other evidences of debt. 3. Where it has suspended its ordinary and lawful business for at least one year. 4. If it has banking powers, or power to make loans on pledges or deposits, or to make insurances, where it becomes insolvent or unable to pay its debts, or has vio- lated any provision of the act, by or under which it was incorporated, or of any other act binding upon it. § 102. Who may bring action to dissolve a corpora- tion. — An action specified in the last section, may be maintained by the attorney-general, in the name and in behalf of the people. And whenever a creditor or stock- holder of any corporation submits to the attorney-general a written statement of facts, verified by oath, showing grounds for an action under the provisions of the last section, and the attorney-general omits, for sixty days after this submission, to commence an action specified in the last section, then, and not otherwise, such creditor or stockholder may apply to the proper court for leave to commence such an action, and on obtaining leave may maintain the same accordingly; and if there be no per- son in existence upon whom service of the summons can be made under the provisions of section four hundred and thirty-one of the code of civil procedure, service of the summons in such action may be made in such man- ner as the court upon application by petition may direct. Amended by L. 1912, Ch. 204. 84 GENERAL COEPOEATION LAW §§ 103, 104 § 103. Temporary injunction in action authorized by this article. — In an action, brought as prescribed in this article, the court may, upon proof of the facts authoriz- ing the action to be maintained, ^rant an injunction order, restraining the corporation, and its trustees, direc- tors, managers and other officers, from collecting or re- ceiving any debt or demand, and from paying out, or in any way transferring or delivering, to any person, any money, property, or effects of the corporation, during the pendency of the action; except by express permis- sion of the court. Where the action is brought to pro- cure the dissolution of the corporation, the injunction may also restrain the corporation, and its trustees, direc- tors, managers and other officers, from exercising any of its corporate rights, privileges, or franchises, during the pendency of the action; except by express permission of the court. The provisions of title second of chapter seventh of the code of civil procedure, relating to the granting, vacating or modifying of an injunction order, apply to an injunction order, granted as prescribed in this section; except that it can be granted only by the court. § 104. Temporary receiver. — In such an action, the court may also, at any stage thereof, appoint one or more receivers of the property of the corporation. A receiver, so appointed, before final judgment is a temporary re- ceiver, until final judgment is entered. A temporary re- ceiver has power to collect and receive the debts, de- mands, and other property of the corporation; to pre- serve the property, and the proceeds of the debts and de- mands collected ; to sell or otherwise dispose of the prop- erty as directed*by the court; to collect, receive and pre- serve the proceeds thereof; and to maintain any action or special proceeding, for either of those purposes. He must qualify as prescribed by law for the qualification of a permanent receiver. Unless additional powers are specially conferred upon him, as prescribed in the next section, a temporary receiver has only the powers speci- §§ 105-107 GENEEAL CORPORATION LAW 85 fied in this section, and those which are incidental to the exercise thereof. § 105. Additional powers and duties of temporary re- ceiver. — 'A temporary receiver, appointed as prescribed in the last section, is, in all respects, subject to the con- trol of the court. In addition to the powers conferred upon him, by the provisions of the last section, the court may, by the order or interlocutory judgment appointing him, or by an order subsequently made in the action, or by the final judgment, confer upon him the powers and authority, and subject him to the duties and liabilities, of a permanent receiver, or so much thereof as it thinks proper; except that he shall not make any distribution among the creditors or stockholders, before final judg- ment, unless he is specially directed so to do by the court. § 106. Permanent receiver. — A receiver appointed by or pursuant to a final judgment in the action, or a tem- porary receiver who is continued by the final judgment, is a permanent receiver, and has all the powers and au- thority conferred, and is subject to all the duties and lia- bilities imposed upon a receiver in article eleven of this chapter. section, see § 104 above. § 107. Additional duties and liabilities of permanent receiver. — A permanent receiver shall keep an account of all moneys received by him, and on the first days of January, April, July and October, in each and every year make and file a written statement, verified by his oath that such statement is correct and true, showing the amount of money received by such receiver, his agents or attorneys, the amount he has a right to retain and the items for which he claims to retain the same, and the dis- tributive share due each person interested therein. He shall pay such distributive share to the person or persons 86 GENERAL CORPOEATION LAW §§ 108, 109 entitled thereto, on demand, at any time after such state- ment. Such account, statement, and all the books and papers of the corporation in the hands of such receiver, shall at all reasonable times be open for the inspection of all persons having an interest therein." And in case of neglect or refusal to comply with either of the above re- quirements, or any duty imposed upon him, the supreme court, at either an appellate division or special term, shall, on the application of the party aggrieved, unless such neglect or refusal shall be satisfactorily explained to the court, forthwith remove such receiver, and ap- point some suitable person as receiver in his place. Such removal shall not vitiate or annul any legal proceedings had by such receiver ; but such proceedings shall be con- tinued by such successor as if no removal had been made. Such receiver shall also be liable to pay to the party in- terested, interest at the rate of ten per centum per an- num on all moneys due to such party and retained by him more than one day after such demand made as afore- said. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 2, § 42, as amended by L. 1858, Ch. 348, § 1. § io8. Application for appointment of receiver. — Ap- plications made by the attorney-general for the appoint- ment of a receiver of a corporation shall be made in the judicial district in which the action in which the appoint- ment is sought is triable. Derivation.— L. 1883, Ch. 378, § 1, part; L. 1896, Ch. 282, § 1. See § 314, post. § log. Officess and stockhold6;rs may be made parties in action brought by creditor. — Where the action is brought by a creditor of a corporation, and the stock- holders, directors, trustees, or other officers, or any oi them, are made liable by law, in any event or contin- gency, for the payment of his debt, the persons, so made liable, may be made parties defendant, by the original or §§ 110-112 GENERAL CORPOKATIOST LAW 87 by a supplemental complaint^ and their liability may be declared and enforced by the judgment in the action. See 155 App. Div. 335. §110. Separate action may be brought against officers and stockholders. — Where the stockholders, directors, trustees, or other officers of a corporation, who are made liable, in any event or contingency, for the payment of a debt, are not made parties defendant, as prescribed in the last section, the plaintiff in the action may maintain a separate action against them, to procure a judgment, declaring, apportioning and enforcing their liability. See 155 App. Div. 335. § III. Proceedings in such actions. — In an action brought as prescribed in either of the last two sections, the court must, when it is necessary, cause an account to be taken of the property and of the debts of the corpora- tion, and thereupon the defendant's liability must be ap- portioned accordingly; but, if it affirmatively appears, that the corporation is insolvent, and has no property to satisfy its creditors, the court may, without taking such an account, ascertain and determine the amount of each defendant's liability, and enforce the same accordingly. See 155 App. Div. 335. § 112. Distribution of property of corporation by judg- ment in actions under this article. — A final judgment in an action, brought against a corporation, as prescribed in this article, either separately or in conjunction with its stockholders, directors, trustees, or other officers, must provide for a just and fair distribution of the property of the corporation, and of the proceeds thereof, among its fair and honest creditors, in the order and in the propor- tions prescribed by law, in case of the voluntary dissolu- tion of a corporation. See 155 App. Div. 335. 88 GENERAL COEPOEATION LAW §§ 113-116 § 113. Recovery of stock subscriptions. — Where the stockholders of the corporation are parties to the action, if the property of the corporation is not sufficient to dis- charge its debts, the interlocutory or final judgment, as the case requires, must adjudge that^ each stockholder pay into court the amount due and remaining unpaid, on the shares of stock held by him, or so much thereof as is necessary to satisfy the debts of the corporation. See 155 App. Div. 335. § 114. Liability of directors and stockholders. — If it appears, that the property of the corporation, and the sums collected or collectable from the stockholders, upon their stock subscriptions, are or will be insufficient to pay the debts of the corporation, the court must ascer- tain the several sums, for which the directors, trustees, or other officers, or the stockholders of the corporation, being parties to the action, are liable; and must adjudge that the same be paid into court, to be applied, in such proportions and in such order as justice requires, to the payment of the debts of the corporation. See 155 App. Div. 335. § 115. Effect of this article. — This article does not repeal or affect any special provision of law, prescribing that a particular kind of corporation shall cease to exist, or shall be dissolved, in a case or in a manner, not pre- scribed in this article; or any special provision of law, prescribing the mode of enforcing the liability of the stockholders of a particular kind of corporation. See 155 App. Div. 335. • § 116. Entry of judgment and filing certified copies thereof. — The final judgment in an action brought as prescribed in this article shall be entered in the office of the clerk of the county in which the principal busines' office, or the principal place of business of the corpora- tion is located, and if it is adjudged that such corpora- § 116 GEKTBRAI, COKPORATION LAW 89 tion be dissolved, a certified copy of such judgment shall, if a banking corporation, be filed in the office of the superintendent of banks ; if an insurance corporation, in the office of the superintendent of insurance ; and if a business, transportation, railroad or membership corpo- ration, in the office of the secretary of state. Added by L. 1916, Ch. 163. 90 GENERAL CORPORATION LAW §§ 130, 131 ARTICLE 7 Action to Annul a Corporation Section 130. Action by attorney-general to annul corporation when legislature directs. 131. Action by attorney -general to annul corporation by leave of court. 132. Notice of application for leave to commence action to annul corporation. 133. Jury trial. 134. Injunction and receiver in final judgment. 135. Temporary injunction. 136. Filing and publishing judgment. § 130. Action by attorney-general to annul corporation when legislature directs. — The -attorney-general, when- ever he is so directed by the legislature, must bring an action against a corporation created by or under the laws of the state, to procure a judgment, vacating or annulling the act of incorporation, or any act renewing the corpora- tion, or continuing its corporate existence, upon the ground that the act was procured upon a fraudulent sug- gestion, or the concealment of a material fact, made by or with the knowledge and consent of any of the persons incorporated. § 131. Action by attorney-general to annul corpora- tion by leave of court. — Upon leave being granted, as prescribed in the next section, the attorney-general may bring an action against a corporation created by or under the laws of the state, to procure a judgment, vacating the charter or annulling the existence of the corporation, upon the ground that it has, either 1. Offended against any provision of an act, by or under which it was created, altered or renewed, or an act Amending the same, and applicable to the corporation; or, 2. Violated any provision of law, whereby it has for- feited its charter, or become liable to be dissolved, by the abuse of its powers; or, §§ 132-134 GENERAL CORPOEATION LAW 91 3. Forfeited its privileges or franchises, by a failure to exercise its powers; or, 4. Done or omitted any act, which amounts- to a sur- render of its corporate rights, privileges, and franchises; or, 5. Exercised a privilege or franchise, not conferred upon it by law. See 140 App. Div. 614. § 132. Notice of application for leave to commence action to annul corporation. — Before granting leave, the court may, in its discretion, require such previous notice of the application as it thinks proper, to be given to the corporation, or any officer thereof, and may hear the cor- poration in opposition thereto. § 133. Jury trial. — An action, brought as prescribed in this article, is triable, of course and of right, by a jury, as if it was an action specified in section nine hundred and sixty-eight of the code of civil procedure and with- out procuring an order, as prescribed in section nine hundred and seventy of the code of civil procedure. § 134. Injunction and receiver in final judgment. — Where any of the matters, specified in section one hun- dred and thirty or section one hundred and thirty-one of this article, are estabHshed in an action, brought as pre- scribed in either of those sections, the court may render final judgment that the corporation, and each officer thereof, be perpetually enjoined from exercising any of its corporate rights, privileges, and franchises; and that it be dissolved. The judgment must also provide for the appointment of a receiver, the taking of an account, and the distribution of the property of the corporation, among its creditors and stockholders, as where a corpo- ration is dissolved upon its voluntary application, as prescribed in article nine of this chapter. 92 GENERAL, CORPORATION LAW §§ 135, 136 § 135. Temporary injunction. — In an action, brought as prescribed in this article, an injunction order may be granted, at any stage of the action, restraining the cor- poration, and any or all of its directors, trustees and other officers, from exercising any of its corporate rights, privileges, or franchises; or from exercising certain of its corporate rights, privileges, or franchises, specified in the injunction order; or from exercising any franchise, liberty, or privilege, or transacting any business, not al- lowred by law. Such an injunction is deemed one of those specified in section six hundred and three of the code of civil procedure, and all the provisions of title second of chapter seventh of the code of civil procedure applicable to an injunction specified in that section, apply to an injunction granted as prescribed in this section, except that it can be granted only by the court. § 136. Filing and publishing judgment. — Where final judgment is rendered against a corporation, in-an action, brought as prescribed in this article, the attorney-general must cause a copy of the judgment-roll to be forth- with filed in the office of the secretary of state ; who must cause a notice of the substance and effect of the judgment, to be published, once a week for four succes- sive weeks, in a newspaper printed in the county, wherein the principal place of business of the corpora- tion was located. Amended by L. 1919, Ch. 161. § 150 GENERAL, COKPOEATION LAW 93 ARTICLE 8 Action to Dissolve Moneyed Corporation Section 150. Temporary injunction and receiver in action against moneyed corporation. 151. Order to show cause why injunction and receiver should not be permanent. 152. Inventory and appraisal by receiver. 153. Conversion of assets into cash by receiver. 154. Employment of counsel by receiver. 155. Notice to creditors by receiver. 156. Allowance, rejection and adjustment of claims by re- ceiver. 157. Final settlement and distribution by receiver. 158. Notice of account and accounting by receiver. 159. Proceedings upon accounting. 160. Claims barred after distribution of assets by receiver. 161. Application of article. § 150. Temporary injunction and receiver in action against moneyed corporation. — Whenever the attorney- general shall commence an action against a moneyed corporation upon the information of either the superin- tendent of insurance, or the superintendent of banks, for the dissolution or sequestration of the property or an- nulment of the charter of a corporation formed under or subject to the banking or insurance law, and shall be satisfied that it is unsafe and inexpedient for such cor- poration to continue doing business, the supreme court may, on his application, in a case provided by law, ap- point a receiver thereof, and may on such appointment Consolidators' Note. — " This article embraces L. 1902, Ch. 60, enti- tled 'An act to simplify the procedure, facilitate the settlement and reduce the expense of receivers on dissolution of a monied corpora- tion,' and L. 1904, Ch. 754, entitled 'An act to simplify the settle- ment of accounts of receivers on dissolution of a monied corporation.' By its language L. 1902, Ch. 60, superseded and repealed all pro- visions inconsistent. Both acts have been inserted in this chapter as Art. 8 in order to bring together in the chapter so far as possible all provisions relating to the dissolution of corporations which are now scattered in many independent acts and also to bring the acts men- tioned in juxtaposition, with other provisions applicable to the subject.'' 94 GENERAL COKPOEATION LAW §§ 151, 152 grant an injunction restraining such corporation from carrying on its business until the further order of the court. The court may, in its discretion, dispense with notice of the application. Derivation.— L. 1902, Ch. 60, § 1. § 151. Order to show cause why injunction and re- ceiver should not be permanent. — The court, on grant- ing an order without notice, either for the appointment of a receiver or for an injunction, or for both forms of relief, as herein provided, shall make an order that the corporation so proceeded against show cause at a term of the court to be held not more than thirty days there- after, why such receiver and injunction should not be permanent. Such order shall be served not less than eight days before the date upon which the hearing thereon is to be had. Unless the court otherwise directs, the receiver appointed in the first instance shall be per- manent receiver of such corporation, and the injunction shall be continued during the pendency of the litigation. Such receiver shall, unless otherwise ordered by the court, continue to act as such up to and after final judg- ment, and until the affairs of the corporation shall be finally settled and its property distributed by him accord- ing to law. The bond to be given by the receiver on his appointment shall be fixed at such sum and so condi- tioned that it shall continue in force and effect until the final discharge of such receiver, including anji- liability which may be incurred by said receiver by virtue of his appointment as such in the final judgment, in case he shall be so named therein. Derivation.— L.«902, Ch. 60, § 2. § 152. Inventory and appraisal by receiver. — It shall be the duty of the receiver to take an inventory and make an appraisal of the assets and property of the cor- poration. In case the corporation is subject to the bank- ing law, two disinterested appraisers shall be appointed §§ 153, 154 GENERAL CORPORATION LAW 95 by the superintendent of banks to aid in this duty, and in case the corporation is subject to the insurance law, such appraisers shall be appointed by the superintend- ent of insurance. Ten days' notice of such inventory and appraisal shall be given to the corporation and such inventory and appraisal shall be completed and filed with the clerk of the supreme court in the county in which the trial is to be had, within ninety days after the appointment of such receiver, and a certified copy thereof in the office of the attorney-general, and in the office of the superintendent of banks, or in the office of the superintendent of insurance, as the case may be, unless for good cause shown the officer appointing such appraisers shall, in writing, extend the time for the com- pletion thereof. Such appraisers shall receive as com- pensation a reasonable sum, not exceeding fifteen dol- lars per day and actual and necessary expenses, to be paid by the receiver upon the approval of the officer by whom they were named. The receiver shall be charge- able with the amount of such inventory and shall be re- lieved therefrom to the same extent and upon the same grounds as in the like case of an executor. Derivation. — L. 1902, Ch. 60, § 3. For remainder of § 3, see f 153 following. § 153. Conversion of assets into cash by receiver. — The receiver shall proceed, immediately upon his ap- pointment, to convert the assets of the corporation into cash. Derivation. — L. 1902, Ch. 60, I 3. For remainder of § 3, see § 159 above. § 154. Employment of counsel by receiver. — It shall not be lawful for any receiver to pay to any attorney or counsel any costs, fees or allowance until the amount thereof shall have been stated to the special term, as ex- penses incurred by such receiver and shall have been approved by that court by an order duly entered. Any 96 GENERAL COEPOEATION LAW § 155 such order shall be the subject of review by the appel- late division and the court of appeals on appeal thereto taken by any party. The receiver may employ not to exceed one counsel unless the employment of additional counsel shall be authorized by the supreme court after notice to the attorney-general of an application therefor. Derivation.— L. 1902, Ch. 60, § 4; L. 1904, Ch. 705, § 1. § 155. Notice to creditors by receiver. — i. Within thirty days after a receiver qualifies he shall cause to be published once a week for twelve weeks in a newspaper published at the principal place of business of the cor- poration, a notice to all creditors of the corporation to present their claims to such receiver at his place of busi- ness within fifteen days after the last publication of such order. He shall also mail a copy of such notice to all the creditors of the corporation known to him or as shown on the books of the company, at their last known place of residence. 2. The receiver of any title guaranty com- pany heretofore or hereafter appointed, which company is authorized by law to issue policies of insurance or agreements of indemnity or guaranty, and which cor- poration has issued and outstanding at the time of the appointment of the receiver, policies of insurance or agreements of indemnity or guaranty, exceeding two thousand in number, shall not be required to mail to the holders or owners of said policies of insurance or of said agreements, the notice required by law to be given to creditors of an insolvent moneyed corporation; but such receiver shall cause a notice to be published twice a week, for four successive weeks, in two newspapers published in the county where said corporation has its principal place of business; which said notice shall require all creditors and owners and holders of out- standing policies of insurance or agreements of indem- nity or guaranty, to exhibit and prove their claim, within sixty days; and, in default of so doing, shall be pre- cluded from all benefit of the judgment and from any §§ 156, 157 GENERAL CORPORATION LAW 97 and all distribution which may be made thereunder, except that the creditor or holder or owner of any policy or agreement of indemnity or guaranty, who shall ex- hibit or prove his claim, with an affidavit that he had no notice or knowledge thereof, in time to comply with the provisions hereof, at any time before an order is made directing a final settlement and distribution of assets of such corporation, shall be entitled to have his claim received, and shall have the same rights and bene- fits thereon, so far as the assets of such corporation then remaining undistributed may be applied, as if his claim had been exhibited and proved within the time limited by such notice. This subdivision shall apply to receivers of all moneyed corporations. Amended by L. 1909, Ch. 240, § 34. Derivation.— L. 1902, Ch. 60, § 5, part; L. 1904, § 754, §§ 1 and 4. § 156. Allowance, rejection and adjustment of claims by receiver. — The receiver shall have the same power and authority with reference to the allowance or rejec- tion of claims as is given to executors, and no reference shall be had to pass upon claims except such as may be disputed by such receiver. In case any claim shall be disputed, the receiver shall immediately upon the ex- piration of the time for the presentation of claims, upon notice to the parties whose claims have been rejected, apply to the court for the appointment of a referee to hear and determine as to the allowance thereof. Claims allowed by the receiver shall be subject to objection upon the final settlement and their validity may be deter- mined as the validity of claims against estates are deter- mined upon final settlement by a surrogate. Derivation.— L. 1902, Ch. 60, § 5. For remainder of § 5, see § 155 above. § 157. Final settlement and distribution by receiver. — The receiver may apply for a final settlement of his accounts and an order for distribution at any time after 7 98 GENERAL COEPOBATION LAW § 158 the expiration of six months, and shall so apply within eighteen months after qualifying as such. The attorney- general or any creditor, or party interested, may apply for an order that the receiver show cause why an ac- counting and distribution should not be had at any time after the expiration of one year after the receiver quali- fies; and it shall be the duty of the attorney-general, after the expiration of eighteen months from the time the receiver enters upon his duties, in case he has not applied for a final settlement of his accounts, to apply for such an order on notice to such receiver. In case of such application by a party other than the receiver, the court shall direct the receiver to take steps to account with all convenient speed. The receiver. is not required or authorized to file any account, except as herein pro- vided, except by special order of the court. Derivation.— L. 1902, Ch. 60, § 6. § 158. Notice of account and accounting by receiver. — 1. The receiver shall file his account, together with a statement of the items and amounts claimed by his counsel, up to that date with the court and a duplicate thereof, together with the vouchers, with the attorney- general, at least thirty days before the time fixed for his final settlement and accounting, and the attorney-gen- eral shall serve upon the attorney for the receiver any objections he may have to the account, or to the state- ment as to the items and amounts claimed by counsel for compensation, appearing in such account on or before such hearing. The receiver shall also within ten days after the filing of the account, mail to each cred- itor of the carporation a notice of the time and place of the filing of his account, and a notice of the time and place of the presentation of the account to the court. Unless objection is made to the items of the account by a creditor or on behalf of the attorney-general, no referee shall be appointed to paps thereon, but the same shall be examined and settled by the court. In case objection § 159 GBNEBAL COEPORATION LAW 99 is made a referee may be appointed to take the testi- mony and report the same to the court. 2. Prior to the final settlement of accounts of a re- ceiver of any moneyed corporation, having in force, at the time of his appointment, outstanding policies of insurance or agreements of indemnity or guaranty, ex- ceeding two thousand in number, said receiver shall give notice to all of the creditors and to the owners or holders of said policies of insurance or agreements of indemnity or guaranty, issued or entered into by such insolvent corporation, by publication of a notice pub- lished at least twice a week, for three successive weeks, immediately preceding the making of an application for a final settlement of his accounts and for an order for the distribution of the assets in his hands. Said notice shall state the fact that an application for a final settle- ment of his accounts and for an order for the distribu- tion of the assets in hand will be made, and shall also state the time and place, when and where the applica- tion will be made. Upon the hearing of such application and motion the court shall, unless objection is made to the items of the account by a creditor or by a holder or owner of a policy of insurance or agreement of indem- nity or guaranty, or on behalf of the attorney-general, examine and settle the said accounts, and make an order for the settlement, adjustment and distribution of the assets in the hands of the receiver. Where objection is made to the items of account, the court may refer the same to a referee to examine and pass thereon. This subdivision shall apply to receivers of all moneyed cor- porations heretofore or hereafter appointed. Amended by L. 1909, Ch. 240, § 35. Subd. 1 is derived from L. 1902, Ch. 60, § 8. Subd. 2 is derived from L. 1904, Ch. 754, §§ 2 and 4. § 159. Proceedings upon accounting. — Upon any ac- counting by the receiver, after the expiration of the time for creditors to present claims, the court shall direct the 100 GENEEAL COEPOEATIOIT LAW §§ 160, 161 receiver to immediately convert the entire assets of the corporation in his hands into cash, in case any of the assets have not been so converted, unless good and suffi- cient cause to the contrary shall appear to the satisfac- tion of the court, such as to authorize an order granting the receiver additional time for that purpose, and upon any such accounting the court shall direct the receiver to distribute the assets of the corporation in his hands to the persons entitled thereto, except so much thereof as may be necessary to be retained for the purpose of ad- ministering the trust and making payment upon con- tested claims, and upon such claims as may thereafter be presented and entitled to be paid. Whenever the attorney-general shall apply for an order to show cause why an accounting should not be had by a receiver by reason of his failure to so account within twelve months after his appointment, and shall deem it advisable to designate counsel to act on his behalf, the court may, upon the accounting, make a reasonable allowance by way of counsel fee to counsel so designated. The first sentence is derived from L. 1902, Ch. 60, § 7. The second sentence is derived from L. 1902, Ch. 60, § 10. § i6o. Claims barred after distribution of assets by receiver. — Upon the granting of the application and the making of the order of distribution, as provided in sub- division two of section one hundred and fifty-eight of this article, and the distribution of the assets in the hands of the receiver, in the manner directed by the order of the court, all claims of the creditors or of holders or owners of policies of insurance or agreements of indemnit]^ or guaranty, against such receiver, shall be barred. This section shall apply to receivers of all moneyed corporations. Amended by L. 1909, Ch. 240, § 36. Derivation.— L. 1904, Ch. 754, § 3. § i6i. Applicatiori of article. — Except as provided in sections one hundred and fifty-five, one hundred and § 161 GENERAL COKPOEATION LAW 101 fifty-eight, subdivision two, and one hundred and sixty of this article, this article shall apply to all actions for the appointment of receivers of moneyed corporations brought by the attorney-general, and to all receivers of such corporations heretofore or hereafter appointed, and to the settlement and adjustment of their accounts and distribution of assets in their hands, and all proceedings with reference thereto hereafter to be taken, and shall supersede and repeal all provisions of law inconsistent herewith, so far as the same relate to actions for the sequestration, annulment or dissolution of moneyed cor- porations. As to all other corporations and as to matters not afJected by this article, provisions of law heretofore existing shall remain in full force and effect. Derivation,— L. 1902, Ch. €0, § 9. 102 GKlinEKAL COEPORATION LAW § 170 ARTICLE 9 Proceedings for Voluntary Dissolution of Corporation Section 170. Petition for voluntary dissolution of corporation. 171. Directors or trustees may be required to petition. 172. Petition when directors or trustees do not agree. 173. Corporaitions excepted from two preceding sections. 174. Contents of petition. 175. Affidavit to be annexed to petition. 176. Presentation of petition. 177. Corporations without stockholders. 178. Action by court upon petition for dissolution. 179. Publication of order to show cause why corporation should not be dissolved. 180. Service of order to show cause. 181. Entering and filing order and papers. 182. Temporary receiver. 183. Application for appointment of receiver. 184. Injunction. 185. Referee. 186. Hearing. 187. Decision. 188. Use of original papers on hearing. 189. Amending papers. 190. Final order. 191. Permanent receiver. 192. Appointment of director, trustee or other officer or stoclcholder as receiver. 193. Certain sales, transfers and judgments void. 194. Omission, defect or default of receiver. 195. Exception of certain corporations. § 170. Petition for voluntary dissolution of corpora- tion. — If a majority of the directors, trustees, or other officers, having the management of the concerns of a cor- poration created by or under the laws of the state, dis- cover that the stock, effects, and other property thereof are not sufficient to pay all just demands, for which it is liable, or to afford a reasonable security to those who may deal with it; or, for any reason, they deem it bene- ficial to the interests of the stockholders that the cor- poration should be dissolved, they may present a peti- §§ 172, 173 GENERAL CORPORATION LAW 103 tion to the supreme court praying for a final order dis- solving the corporation, as prescribed in this article. See 201 N. Y. 420; 140 App. Div. 556; 70 Misc. 673. § 171. Directors or trustees may be required to peti- tion. — It shall be the duty of a majority of the directors or trustees of every corporation created by or under the laws of this state to present a petition as prescribed in the last section whenever directed so to do by a majority in interest of its stockholders. § 172. Petition when directors or trustees do not agree. — If a corporation, created under a general statute of the state for the formation of corporations or under any special act or charter has an even number of trus- tees or directors who are equally divided respecting the management of its affairs, or if the stock of such cor- poration is equally divided into not more than two in- dependent ownerships or interests, or if the entire stock of the corporation is, at that time, owned by the trustees or directors who are even in number or equally divided representing the management of its affairs, or if the stock is so divided, that one-half thereof is owned or controlled by persons favoring the course of part of the trustees or directors and one-half thereof is owned by persons favor- ing the course of the other trustees or directors, the trus- tees or directors or the stockholders or one or more of them may present a petition as prescribed in section one hundred and seventy of this chapter. See 70 Miac. 633. § 173. Corporations excepted from two preceding sec- tions. — Sections one hundred and seventy-one and one hundred and seventy-two of this chapter do not apply to a savings bank, a trust company, a safe deposit company, or a corporation formed to rent safes in burglar and fire- proof vaults, or for the construction or operation of a railroad, or for aiding in the construction thereof, or for 104 GENERAL COEPORATION LAW § 174 carrying on the business of banking or insurance, or intended to derive a profit from the loan or use of money. § 174. Contents of petition. — The petition must show that the case is one of those specified in sections one hundred and seventy and one hundred and seventy-two of this chapter, and must state the reasons, which induce the petitioner or petitioners to desire the dissolution of the corporation. A schedule must be annexed to the petition, containing the following matters, as far as the petitioner or petitioners know, or have the means of knowing the same: r. A full and true account of all the creditors of the corporation, and of all unsatisfied engagements, entered into by, and subsisting against, the corporation. 2. A statement of the name and place of residence of each creditor and of each person with whom such an engagement was made, and to whom it is to be per- formed, if known ; or, if either is not known, a statement of that fact. 3. A statement of the sum owing to each creditor, or other person specified in the last subdivision, and the nature of each debt, demand, or other engagement. 4. A statement of the true cause and consideration of the indebtedness to each creditor. 5. A full, just, and true inventory of all the property of the corporation, and of all the books, vouchers, and securities, relating thereto. 6. A statement of each incumbrance upon the prop- erty of the corporation, by judgment, mortgage, pledge, or otherwise. 7. A full, just, and true account Of the capital stock of the corporat!ion, specifying the name of each stock- holder ; his residence, if it is known, or if it is not known, stating that fact ; the number of shares belonging to him ; the amount paid in upon his shares; and the amount still due thereupon. Amended by L. 1909, Ch. 240, { 37. §§ 175-179 6ENEKAL COEPOKATIOlir LAW 105 § 175. Affidavit to be annexed to petition. — An affi- davit, made by each of the petitioners, to the effect that the matters of fact, stated in the petition and the schedule, are just and true, so far as the affiant knows or has the means of knowing the same, must be annexed to the petition and schedule. See 70 Misc. 578. § 176. Presentation of petition. — The papers must be presented at a special term of the supreme court, held within the judicial district, embracing the county wherein the principal office of the corporation is located. § 177. Corporations without stockholders. — In the case of corporations affected by the provisions of this article arid not having stockholders, it shall be sufficient for the purposes of this article to notify, name and refer to the " members " of such corporations, instead of " stockholders," as herein provided. § 178. Action by court upon petition for dissolution. — In a case specified in sections one hundred and seventy- one and one hundred and seventy-two of this chapter the court may, in its discretion, entertain or dismiss the ap- plication. Where it entertains the application, or where the cause is one of those specified in section one hundred and seventy of this chapter, the court must make an order, requiring all persons interested in the corporation to show cause before it, or before a referee designated in the order, at a time and place therein specified, not less than six weeks after the granting of the order, why the corporation should not be dissolved. Amended by L. 1909, Ch. 240, § 38. § 179. Publication of order to show cause why cor- poration should not be dissolved. — A copy of the order must be published, as prescribed therein, at least once in each of the three weeks immediately preceding the time 106 GENERAL COKPOBATION LAW §§ 180-182 fixed therein for showing cause, in one or more news- papers, specified in the order, published in the city or county wherein the order is entered. See 136 N. Y. Supp. 1060. § i8o. Service of order to show cause. — A copy of the order must also be served upon each of the persons, specified in the schedule as a creditor or stockholder of the corporation or as a person to whom an engagement of the corporation is to be performed, other than a person whose residence is stated to be unknown, or to be without the United States. The service must be made either personally, at least ten days before the time appointed for the hearing; or by depositing a copy of the order, at least twenty days before the time so ap- pointed, in the post-office, inclosed in a postpaid wrapper, addressed to the person to be served, at his residence, as stated in the schedule. § i8i. Entering and filing order and papers. — The order must be entered, and the papers must be filed, within ten days after the order is made, with the clerk of the county where the principal office of the corpora- tion is located. See 204 N. Y. 163. § 182. Temporary receiver. — If it shall be made to appear to the satisfaction of the court that the corpora- tion is insolvent, the court may at any stage of the pro- ceedings before the final order, on motion of the peti- tioners on notice to the attorney-general, or on motion of the attorifty-general on notice to the corporation, appoint a temporary receiver of the property of the cor- poration, which receiver shall have all the powers and be subject to all the duties that are defined as belonging to temporary receivers appointed in an action, in section one hundred and four of this chapter. The court may §§ 183, 184 GENERAL, COEPORATION LAW 107 also, in its discretion, at any stage in the proceeding after the appointment of a temporary receiver, upon like motion and notice, confer upon such temporary receiver the powers and authority, and subject him to the duties and liabilities of a permanent receiver, or as much thereof as it thinks proper, except that he shall not make any final distribution among the creditors and stock- holders, before final order in the proceedings, unless he is specially directed so to do by the court. § 183. Application for appointment of receiver. — Every application made for the appointment of a receiver of a corporation other than applications made by the attorney-general on behalf of the people of the state, shall be made at a special term of the supreme court held in and for the judicial district in which the principal business office of the corporation is located. Derivation.— L. 1883, Ch. 378, § 1, part; L. 1896, Ch. 282, § 1. Consolidators' Note.—" The statute of 1883, a portion of which is here consolidated, applies to proceedings for the voluntary dissolu- tion of a corporation. People v. Seneca liake Grape & Wine Co., 52 Hun, 175. See also U. S. Trust Co. v. N. Y., W. S. & B. E. E. Co., 101 N. Y. 478; McNabb v. Ported Air Lighter Co., 44 App. Div. 103; Matter of Broadway Insurance Co., 23 App. Div. 282. A more gen- eral provision relating to applications for the appointment of receiv- ers and otherwise will be found in § 314 under the head of provisions applicable to more than two of the actions or proceedings incorpor- ated in this chapter." § 184. Injunction. — If a temporary receiver be ap- pointed, the court may, in its discretion, on like motion and notice, with or without security, at any stage of the proceeding before the final order, grant an injunction, restraining the creditors of the corporation, from begin- ning an action against the said corporation for the re- covery of a sum of money, or from taking any further proceedings in such an action theretofore commenced. Such injunction shall have the same efiFect and be sub- ject to the same provisions of law as if each creditor upon whom it is served was named therein. 108 GENERAL COEPORATION LAW §§ 185-190 § 185. Referee. — If a referee was not designated in the order to show cause, the court may, in its discretion, appoint a referee when or after the order is returnable. § 186. Hearing. — At the time and pla^e specified in the order, or at the time and place to which the hearing is adjourned, the court, or the referee, must hear the allegations and proofs of the parties, and determine the facts. § 187. Decision. — The decision of the court, or the report of the referee, must be in writing, and must be made and filed with all convenient speed. It must con- tain a statement of the effects, credits, and other prop- erty, and of the debts and other engagements, of the corporation, and of all other matters, pertaining to its affairs. § 188. Use of original papers on hearing. — The court or the referee is entitled to use, upon the hearing, the original petition, and the schedules annexed thereto ; and the clerk must transmit them accordingly; upon the written order of the judge, or of the referee. In that case, they must be returned with the decision or report. § 189. Amending papers. — The court may, at any stage of the proceedings before final order, on the appli- cation of the petitioners, or a majority of them, or on the application of the temporary receiver, grant an order amending the schedules annexed to the original petition, by the insertion of a:dditional items, or by making the statements or inventory fuller and in greater detail than as originally filed, with the like effect as though said petition and schedules had been originally presented and filed as amended. § 190. Final order. — Where the hearing is before a referee, a motion for a final order must be made to the court, upon notice to each person who has made himself § 191 GENEKAL COKPOBATION LAW 109 a party to the proceedings, by filing with the clerk, be- fore the close of the hearing, a notice of his appearance, in person or by attorney, specifying a post-office within the state, where such a notice may be served. The notice may be served as prescribed in the code of civil pro- cedure for the service of a paper upon an attorney in an action. Where the hearing was before the court, a motion for a final order may be made immediately, or at such a time and upon such a notice as the court pre- scribes. § 191. Permanent receiver. — Upon an application for a final order, if it appear to the court in a case specified in section one hundred and seventy of this chapter that the corporation is insolvent, or, in a case specified either in that section, or in section one hundred and seventy- one and one hundred and seventy-two of this chapter, that for any reason a dissolution of the corporation will be beneficial to the interests of the stockholders and not injurious to the public interests, the court must make a final order dissolving the corporation, and appointing one or more receivers of its property. But in the case of a solvent corporation, the court may, if there is no objection by creditors, dispense with a receiver and provide in the final order for the distribution of the assets. The order shall be entered in the office of the clerk of the county in which the principal business office, or the principal place of business of the corpora- tion is located, and a certified copy thereof, if a banking corporation, shall be filed in the office of the superin- tendent of banks; if an insurance corporation, in the office of the superintendent of insurance; and if a busi- ness, transportation, railroad or membership corpora- tion, in the office of the secretary of state. Upon the entry of the order and the filing of a certified copy thereof as herein provided, the corporation is dissolved. A receiver appointed under this section shall have all the powers, duties and liabilities of receivers under article eleven of this chapter. Amended by L. 1909, Ch. 240, § 39; L. 1916, Ch. 53. 110 GENERAL COEPOEATION LAW §§ 192-195 § 192. Appointment of director, trustee or other officer or stockholder as receiver. — The court may, in its dis- cretion, appoint a director, trustee, or other oificer, or a stockholder of the corporation, a receiver of its prop- erty. § 193. Certain sales, transfers and judgments void. — A sale, assignment, mortgage, conveyance, or other transfer, of any property of a corporation, made after the filing of a petition as prescribed in this article, in payment of, or as security for, an existing or prior debt, or for any other consideration; or a judgment thereafter rendered against the corporation by confession, or upon the acceptance of an offer, is absolutely void, as against the receiver appointed in the special proceeding, and as against the creditors of the corporation. § 194. Omission, defect or default of receiver. — In a proceeding for the voluntary dissolution of a corpora- tion, the court may, in the furtherance of justice, upon notice to the attorney-general, and the attorney-general not objecting, and upon such further notice to creditors or others interested as the court shall direct, which notice may be made by mail upon all persons and corporations not residing or existing within the state, relieve a receiver from any omission, defect or default, in any proceeding or act required by law to be taken or done, or in the giving of any notice required by law to be given, and the court may upon like notice, confirm any act of a receiver, and any decision, report, order or judgment made in such proceeding. • § 195. Exception of certain corporations. — This ar- ticle does not apply to an incorporated library society, to a religious corporation, or to a select school or aca- demy, incorporated by the regents of the university or by the legislature, or to a municipal or other political corporation. § 200 GENERAL CORPORATION LAW 111 ARTICLE 9-A Forfeiture of Charter or Revocation of Certificate of Authority, for Maintaining a Nuisance Section 200. Forfeiture of cliarter or revocation of certificate of au- thority of eorporatioua maintaining nuisances gener- ated in another state. 201. Reinstatement. 202. Application of article. § 200. Forfeiture of charter or revocation of certificate of authority of corporations maintaining nuisances gen- erated in another state. — Any corporation organized under the laws of this or any other state which shall so conduct its business, without the state, by the emission or discharge of dust, smoke, gas, steam or offensive, noisome or noxious odors or fumes, so as to unreason- ably injure or endanger the health or safety in this state of any considerable number of the people of this state, shall be deemed guilty of a nuisance and the charter of such corporation, if incorporated by or under any law of this state shall be deemed forfeited in the manner prescribed in this section, or its certificate of authority to do business in this state, if incorporated or formed under the laws of any other state, shall be deemed re- voked and annulled in the manner prescribed in this sec- tion, and in either case shall not be revived, except as prescribed in the next section. Complaints may be made to the state commissioner of health by any person, asso- ciation or corporation aggrieved, by petition or complaint in vtrrJting,-. setting forth any act or thing done or omitted to be done claimed to constitute a nuisance within the provisions of this section. Upon the presentation of such a complaint, the state commissioner of health shall cause a copy thereof to be served upon the corporation complained of, in the manner provided by law for the service of a summons, accompanied by a notice, directed to such corporation, requiring that the matters com- 112 GENERAL CORPOKATION LAW § 200 plained of be abated, or that the charges be answered in writing within a time to be specified by such commis- sioner. If the charges contained in such complaint be not thus satisfied and it shall appear to such commis- sioner of health that there are reasonable grounds there- for, he shall cause such charges to be investigated in such manner and by such means as he shall deem proper and fix a time for a hearing upon such complaint and cause notice thereof to be forwarded to the complainant and the corporation complained of. If the state com- missioner of health, or his successor, after such notice to such corporation, and an opportunity for a hearing being given to it, shall find that such corporation is so conducting its business, without the state, as to unrea- sonably injure or endanger the health or safety in this state of any considerable number of people of this state, he shall file such findings in duplicate in the offices of the secretary of state and the attorney-general. A cer- tificate of the secretary of state giving notice of the fil- ing of such findings shall be served upon the corporation, or upon the designated agent of a foreign corporation authorized to do business in this state, and thereupon the charter of such corporation if incorporated by or under any law of this state, or its certificate of authority to do business in this state, if incorporated or formed under the laws of any other state, shall be suspended for the period of thirty days. Any person who shall exercise or attempt to exercise any powers under the charter of any corporation or by virtue of a certificate of authority which has been so suspended, during the period of such suspension, shall be guilty of a misdemeanor. If at the expiration of such period the state commissioner of health upon further proof and opportunity to such offending corporation to be heard shall find and determine that such corporation continues to conduct its business so as to constitute such nuisance, he shall cause a notice of such determination to be served upon the corporation, or upon the designated agent of a foreign corporation authorized to do business in this state, and published § 201 GENEEAL CORPORATION LAW 113 once a week for two successive weeks in the official state paper. On the tenth day after such service and pubHca- tion the charter of such corporation, if incorporated by or under any law of this state, shall be deemed forfeited or its certificate of authority to do business in this state, if incorporated or formed under the laws of any other state, shall be deemed to be revoked and canceled. Any person who shall exercise or attempt to exercise any powers under the charter of any corporation which has been so forfeited or by virtue of a certificate of authority which has been so revoked, shall be guilty of a mis- demeanor. If, pursuant to this section, the charter of a domestic corporation be forfeited, the attorney-general shall forthwith apply to the supreme court for the ap- pointment of a receiver of its property, who shall have all the powers and duties, so far as practicable, prescribed by articles ten-A and eleven of the general corporation law. Added by L. 1917, Ch. 292. § 201. Reinstatement. — When any corporation has ceased to perform the acts or maintain the nuisance by reason of which its charter has been forfeited or its cer- tificate of authority revoked, and shall satisfactorily guarantee that it will not perform such acts or maintain such nuisance in the future, the charter or certificate of authority of such corporation may be revived in the manner prescribed in this section with the same force and efifect as if such charter had not been forfeited or such certificate revoked. If such corporation shall file a petition in writing with the state commissioner of health setting forth that the nuisance in fact no longer exists and it shall appear that there are reasonable grounds therefor, such commissioner of health shall cause an in- vestigation to be made in such manner and by such means as he shall deem proper, and if after such investi- gation, he shall find and certify that such corporation has ceased to conduct its business so as to constitute such 8 114 GENERAL CORPOBATIOW LAW § 202 nuisance, and shall file such findings in duplicate in the offices of the secretary of state and attorney-general, the charter or certificate of authority of such corporation shall be deemed to be revived with full force and effect. A supplemental certificate of the secretary of state shall be served and published in like manner, and upon such service and publication, such revival shall become eflfec- tive. Such revival shall not, however, prevent a subse- quent forfeiture or revocation of the charter or certificate of the same corporation for the same or similar offense. This article shall not be deemed to apply to a corpora- tion organized and existing under the laws of the state of New York and subject to the jurisdiction of the pub- lic service commission under the public service com- missions law or principally engaged in furnishing power to such public service corporation. Added by L. 1917, Ch. 292. § 202. Application of article. — ^This article shall not apply to corporations operating railroad or steamboat lines. Added by L. 1917, Ch. 292. 220 GENERAL CORPORA.TIOK LAW 115 ARTICLE 10 Dissolution of Stock Corporation without Judicial Proceedings Section 220. Dissolution of stock corporation before beginning! business. 221. Dissolution of stock corporation before expiration of time limit. § 220. Dissolution of stock corporation before be- ginning business. — The incorporators named in any cer- tificate of incorporation filed for the purpose of creating a domestic stock corporation, other than a moneyed or transportation corporation, may, before the payment of any part of the capital, and before beginning business, surrender all corporate rights and franchises, by signing, verifying and filing in the office of the secretary of state and the clerk of the county where the certificate of in- corporation is filed, a certificate setting forth the names of the incorporators, that no part of the capital has been paid, that there are no liabilities, that such business has not been begun, and surrendering all rights and fran- chises ; and proof of the facts set forth in such certificate to the satisfaction of the secretary of state; and there- upon the said corporation shall be dissolved, and its cor- porate existence and power shall cease. In case any in- corporator of such a corporation shall be deceased, then the aforesaid certificate may be made by the surviving incorporators providing two years shall have elapsed since the date of its incorporation, but in such case the certificate shall set forth the fact that one or more of said incorporators is deceased. Former 8 61, Stock Corporation Law. Derivation.— L. 1904, Ch. 29«, § 1; L. 1908, Ch. 457, § 1. Consolidators' Note. — " These proceedings for the voluntary dis- solution of stock corporations have been transferred to the General Corporation Law from the Stock Corporation Law in order to bring together 10 far ^3 -possible all proceedings and actions relating to the winding up of a corporation." 116 GENEEAL CORPORATION LAW § 221 § 221. Dissolution of stock corporation before expira- tion of time limit. — Any stock corporation, except a moneyed or a railroad corporation, may be dissolved be- fore the expiration of the time limited in its certificate of incorporation or in its charter as follows: I. The board of directors of any such corporation may at a meeting called for that purpose, upon at least three days' notice to each director, by a vote of a majority of the whole board, adopt a resolution that it is in their opinion advisable to dissolve such corporation forthwith, and thereupon shall call a meeting of the stockholders for the purpose of voting upon a proposition that such corporation be forthwith dissolved. Such meeting of the stockholders shall be held not less than thirty nor more than sixty days after the adoption of such resolution, and the notice of the time and place of such meeting so called by the directors shall be published in one or more news- papers published and circulating in the county wherein such corporation has its principal office, at least once a week for three weeks successively next preceding the time appointed for holding such meeting, and on or be- fore the day of the first publication of such notice, a copy thereof shall be served personally on each stockholder, or mailed to him at his last known post-office address. Such meeting shall be held in the City, town or village in which the last preceding annual meeting of the corpora- tion was held, and said meeting may, on the day so ap- pointed, by the consent of a majority in interest of the stockholders present, be adjourned from time to time, and notice of such adjournment shall be published in the newspapers in which the notice of the meeting is pub- lished. If at any such meeting the holders of two-thirds in amount of the stock of the corporation, then outstand- ing, shall, in person or by attorney, consent that such dis- solution shall take place and ' signify such consent, in writing, then such corporation shall file such consent, at- tested by its secretary or treasurer, and its president or vice-president, together with the powers of attorney § 221 GENERAL CORPORATION- LAW 117 signed by such stockholders executing such consent by attorney, with a statement of the names and residences of the then existing board of directors of said corporation, and the names and residences of its officers duly verified by the secretary or treasurer or president of said cor- poration, in the office of the secretary of state. 2. The secretary of state shall thereupon issue to such corporation, in duplicate, a certificate of the filing of such papers and that it appears therefrom that such corpora- tion has complied with this section in order to be dis- solved, and one of such duplicate certificates shall be filed by such corporation in the office of the clerk of the county in vC'hich such corporation has its principal office; and thereupon such corporation shall be dissolved and shall cease to carry on business, except for the purpose of adjusting and winding up its business. The board of directors shall cause a copy of such certificate to be pub- lished at least once a week for two weeks in one or more newspapers published and circulating in the county in which the principal office of such corporation is located, and at the expiration of such publication, the said cor- poration by its board of dfrectors shall proceed to adjust and wind up its business and affairs with power to carry out its contracts and to sell its assets at public or private sale, and to apply the same in discharge of debts and obligations of such corporation, and, after paying and adequately providing for the payment of such debts and obligations, to distribute the balance of assets among the stockholders of said corporation, according to their re- spective rights and interests. 3. Said corporation shall nevertheless continue in ex- istence for the purpose of paying, satisfying and dis- charging any existing debts or obligations, collecting and distributing its assets and doing all other acts re- quired in order to adjust and wind up its business and affairs, and may sue and be sued for the purpose of en- forcing such debts or obligations, until its business and affairs are fully adjusted and wound up. 118 GKNEEAL CORPORATION LAW § 221 4. After paying or adequately providing for the debts and obligations of the corporation the directors may, with the written consent of the holders of two-thirds in amount of the capital stock, sell the remaining assets or any part thereof to a corporation organized under the laws of this or any other state, and engaged in a busi- ness of the same general character, and take in payment therefor the stock or bonds or both of such corporation and distribute them among the stockholders, in lieu of money, in proportion to their interest therein, but no such sale shall be valid as against any stockholder, who, within sixty days after the mailing of notice to him of such sale, shall apply to the supreme court in the manner provided by section seventeen of the stock corporation law, for an appraisal of the value of his interest in the assets so sold; unless within thirty days after such ap- praisal the stockholders consenting to such sale, or some of them, shall pay to such objecting stockholder or de- posit for his account, in the manner directed by the court, the amount of such appraisal and upon such pay- ment or deposit the interest of such objecting stock- holder shall vest in the person or persons tnaking such payment or deposit. Former § 57, Stock Corporation Law, altered. Derivation.— L. 1896, Ch. 932, § 1; L. 1900, Oh. 760, § 1. See 158 App. Div. 578; 157 App. Div. 162; 156 App. Div. 580; 152 App. Div. 126; 149 App. Div. 631; 145 App. Div. 350; 130 N. Y. Supp, 134; 134 App. Div. 394; 133 App. Div. 10. 225, 226 GENERAL CORPORATION LAW 119 ARTICLE loa* Provisions Applicable to Temporary and Permanent Receivers of Corporations Section 225. Security. 226. Removal or new bond. 227. Notice to sureties upon accounting. § 225. Security. — A receiver, appointed in an action or special proceeding, must, before entering upon his duties, execute and file with the proper clerk, a bond to the people, with at least two sufficient sureties, in a penalty fixed by the court, judge, or referee, making the appoint- ment, conditioned for the faithful discharge of his duties as receiver; and the execution of any such bond by any fidelity or surety company authorized by the laws of this state to transact business, shall be equivalent to the ex- ecution of said bond by two sureties. But this section does not apply to a case where special provision is made by law for the security to be given by a receiver or for increasing the same. Added by L. 1909, Ch. 240, § 40. § 226. Removal or new bond. — The court, or, where the order was made out of court, the judge making the order, by or pursuant to which the receiver was ap- pointed, or his successor in office, may, at any time, re- move the receiver, or direct him to give a new bond, with new sureties, with the like condition specified in the last section. But this section does not apply to a case where special provision is made by law for the security to be given by a receiver, or for increasing the same, or for re- moving a receiver. , Added by L. 1900, Ch. 240, § 40. •Article 10a was added to the Consolidated Laws by L. 1909, Ch. 240, § 46. 120 GENERAL CORPORATION LAW § 227 § 227. Notice to sureties upon accounting. — A re- ceiver who, having executed and filed a bond as pro- vided for in section two hundred and twenty-five or sec- tion two hundred and twenty-six of this chapter, before presenting his accounts as receiver, must give notice to the surety or sureties on his official bond, of his inten- tion to present his accounts, not less than eight days be- fore the day set for the hearing on said accounting. The same notice must be given to such surety or sureties where the accounting is ordered on the petition of a person or persons other than the receiver, and in no case shall the receiver's accounts be passed, settled or al- lowed, unless the said notice provided for in this section shall have first been given to the surety or sureties on the official bond of such receiver. Added by L. 1909, Ch. 240, § 40. GENEEAL, COKPOKATION LAW 121 ARTICLE II Powers, Duties and Liabilities of Receivers of Corporation Section 230. Application of this article. 231. Eeceiver trustee of property. 232. Receiver's title to property. 233. Transfer of assets of corporation to receiver. 234. Security of receiver. 235. Authority of single receiver. 236. Authority where there is more than one receiver. 237. Surviving receivers. 238. Oath of receiver. 239. General powers of receivers. 240. Power of receiver to institute proceedings to recover assets. 241. Power of receiver in the settlement of controversies. 242. Power of receiver to employ counsel. 243. Power of receiver to hold real property. 244. Power of receiver to recover stock subscriptions. 245. Duty of receiver to convert assets into money. 246. Duty of receiver as to private sales. 247. Duty of receiver to keep accounts. 248. Duty of receiver to serve copy of report upon attorney- general and superintendent of banks. 249. Duty of certain receivers to make reports. 250. Duty of receivers to give notice to creditors. 251. Delivery of property and payment of debts to receiver after notice. 252. Penalty for concealing property from receiver. 253. Duty of receiver to call creditors' meeting. 254. Proceedings at creditors' meeting. 255. Deduction of disbursements and commissions by re- ceiver. 256. Refunding consideration of subsisting contracts. 257. Retention of funds for subsisting contracts and pend- ing suits. 258. Payment of debts not due. 259. Allowance of set-offs. 260. Penalties recovered by receiver. 261. Order of payment by receiver. 261a. Payment of wages by receivers. 262. Failure to file claim before first dividend. 263. Second dividend by receiver. 122 GENERAL GOEPORATIOa' LAW Section 264. Surplus to stockholders. 265. Disposition of moneys retained by receivers for suits. 266. Duty of receiver as to unclaimed dividend. 267. EflFect of failure to file claim before second dividend. 268. Final accounting by receiver. 269. Notice of final accounting. 270. Hearing on final accounting. 271. Reference of final account. 272. Further accounting. 27'3. Removal of receiver. 274. Vacancy. 275. Renunciation by receiver. 276. Control of receiver by court. 277. Commissions and expenses of receiver in voluntary dissolution. 278. Commissions and expenses of receiver except in volun- tary dissolution. Consolidators' Note. — " This article relates to the powers, duties and liabilities of receivers of corporations, and unless otherwise pro- vided in specific sections it is made applicable to receivers appointed under Art. 6, relating to actions for sequestration, actions for dis- solution and actions to enforce the. individual liability of officers and members of corporations, and Art. 9, relating to proceedings for the voluntary dissolution of a corporation. The article consists of the live matter in §§ 68-89 of the Revised Statutes (Pt. 3, Ch. 8, Tit. 4, Art. 3), the sections of the Revised Statutes relating to the powers, duties and obligations of trustees of insolvent debtors (Pt. 2, Ch. 5, Tit. 1, Art. 8) which were made applicable by reference in §§ 66 to 89 above referred to, provisions from the Code of Civil Procedure and finally provisions from independent statutes not found in the Revised Statutes or the Code of Civil Procedure relating to the subject of receivers. The provisions of the Revised Statutes were made applic- able by L. 1880, Ch. 245, § 1, subd. 3, p. 368. Section 42 of the Re- vised Statutes being made applicable to permanent receivers appointed in actions for sequestration, actions for dissolution, etc., under § 1788 of the Code of Civil Procedure and §§ 66 to 89, both inclusive, being ma^e applicable to receivers appointed in proceedings for the volun- tary dissolutioifof a corporation under § 2429 of the Code of Civil Procedure. The provisions of the, Code of Civil Procedure relating to receivers and of independent statutes have been incorporated accord- ing to their context and judicial construction making them applicable. For convenience, the provisions relating to the powers, duties and liabilities of receivers of corporations have been placed in a separate article where by reference they have been made applicable to such actions and proceedings as they are now applicable to by law." §§ 230-234 GENERAL CORPOEATION LAW 123 § 230. Application of this article. — Unless otherwise provided the provisions of this article shall apply only to permanent receivers appointed pursuant to section one hundred and six or section one hundred and ninety- one of this chapter. New. § 231. Receiver trustee of property. — Permanent re- ceivers shall be trustees of the property for the benefit of the creditors of the corporation and of its stockholders. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 67, part. § 232. Receiver's title to property. — Such receivers shall, from the time of their having fiied the security re- quired by law, be vested with all the property, real or personal vested or contingent, of the corporation. Amended L. 1909, Ch. 240, § 41 ; L. 1913, C!h. 766. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 67, part. § 233. Transfer of assets of corporation to receiver. — In all cases where receivers have been or shall be ap- pointed for any corporation of this state other than an insurance company on application by the attorney-gen- eral, all property, real and personal, and all securities of every kind and nature belonging to such corporation, no matter where located or by whom held, shall be trans- ferred to, vested in and held by such receiver; provided, however, that such transfer shall only be made when di- rected by an order of the supreme court, due notice of the application for such order having been made on the attorney-general and the custodian of the funds, securi- ties or property. Derivation.— L. 1884, Ch. 285, § 1. § 234. Security of receiver. — Before entering upon the duties of their appointment, such receivers shall give such security to the people of the state, and in such 124 GENERAL, CORPOBATION LAW §§ 235-238 penalty, as the court shall direct, conditioned for the faithful discharge of the duties of their appointment, and for the due accounting for all moneys received by them. Derivation.— K. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 66, part. § 235. Authority of single receiver. — When one re- ceiver only, shall be appointed, all the provisions herein contained, in reference to several receivers shall apply to him. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 2. See 155 App. Div. 333. § 236. Authority where there is more than one re- ceiver. — When there are more receivers than one ap- pointed, the debts and property of the corporation may be collected and received by any one of them ; and when there are more than two receivers appointed, every power and authority conferred on the receivers may be exer- cised by any two of them. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 3. See 155 App. Div. 333. § 237. Surviving receivers. — The survivor or survivors of any receivers shall have all the powers and rights given to receivers. All property in the haflds of any receiver at the time of his death, removal or incapacity, shall be delivered to the remaining receiver or receivers, if there be any; or to the successor of the one so dying, removed or incapacitated; who may demand and sue for the same. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 4. See 155 App. Div. 333. § 238. Oath of receiver, — Before proceeding to the discharge of any of their duties, all such receivers shall take and subscribe an oath, that they will well and truly § 239 GENERAL COEPOEATIOIT LAW 125 execute the trust by their appointment reposed in them, according to the best of their skill and understanding; which oath shall be filed with the officer or court, that appointed them. Derivation.— E. S., Pt. 2, Ch. 5, Tit. 1, Art. 8. § 5. § 239. General powers of receivers. — The said re- ceivers shall have power: 1. To sue in their own names or otherwise, and re- cover all the property, debts and things in action, be- longing or due or to become due to such corporation, whether accruing or maturing before or after the dis- solution thereof and whether vested or contingent at the time of such dissolution, in the same manner and with the like effect as such corporation might or could have done if no receivers had been appointed; and no set-off shall be allowed in any such suit, for any debt, unless it was owing to such creditor, by such corporation or un- less it was owing to such creditor, by such corporation or unless it shall have been duly contracted by such re- ceiver subsequent to his appointment ; before the appoint- ment of the receiver of such corporation; notwithstand- ing the notice to creditors the receivers may sue for -and recover, any property or effects of the corporation and any debts due to it, at any time, before the day ap- pointed for the delivery or payment thereof ; 2. To take into their hands, all the property of such corporation, whether attached, or delivered to them, or afterwards discovered; and all books, vouchers and se- curities relating to the same; 3. In the case of a non-resident, absconding or con- cealed debtor, to demand and receive of every sheriff who shall have attached any of the property of such debtor, or who shall have in his hands, any moneys arising from the sale of such property, all such property and moneys, on paying him his reasonable costs and charges, fo- attaching and keeping the same, to be allowed by the court having jurisdiction; 126 GENEEAI, COEPOBATION LAW § 240 4. From time to time, to sell at public auction, all the property, real and personal, vested in them, which shall come to their hands, after giving at least fourteen days' public notice of the time and place of sale, and also pub- lishing the same for two weeks in a newspaper, printed in the county, where the sale shall be made, if there be one; 5. To allow such credit on the sale of real property by them, as they shall deem reasonable, subject to the pro- visions of this article for not more than three-fourths of the purchase money; which credit shall be secured by a bond of the purchaser, and a mortgage on the property sold; 6. On such sales, to execute the necessary conveyances and bills of sale ; 7. To redeem all mortgages and conditional contracts and all pledges of personal property, and to satisfy any judgments, which may be an incumbrance on any prop- erty so sold by them; or to sell such property subject to such mortgages, contracts, pledges or judgments; 8. To settle all matters and accounts between such corporation and its debtors, or creditors, and to examine any person touching such matters and accounts, on oath, to be administered by either of them ; 9. Under the order of the court appointing them, to compound with any person indebted to such corporation and thereupon to discharge all demands against such person. Amended by L. 1913, Cm. 766. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 7, except the last clause of the first paragraph, beginning " notwithstanding," etc., from R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 10. § 240. Power of receiver to institute proceedings to re- cover assets. — Whenever any receiver of a domestic cor- poration, or of the property within this state of any foreign corporation, shall have been appointed and quali- fied, as provided in articles five, six, seven, nine, eleven or twelve of this chapter either before, upon, or after final § 240 GENEBAL COEPORATION LAW 127 judgment or order in the action or special proceeding in which such appointment was made, and shall, by his own verified petition, affidavit or other competent proof, show to the supreme court, at a special term thereof, held within the judicial district wherein such appointment was made, that he has good reason to believe that any officer, stockholder, agent or employee of such corpora- tion, or any other person whomsoever, has embezzled or concealed, or withholds or has in his possession or under his control, or has wrongfully disposed of, any property of such corporation which of right ought to be surrendered to the receiver thereof; or that any person can testify concerning the embezzlement, concealment, withholding, possession, control or wrongful disposition of any such property, the court shall make an order, with or without notice, commanding such person or persons to appear at a time and place to be designated in the order, before the court or before a referee named by the court for that purpose, and to submit to an ex- amination concerning such embezzlement, concealment, withholding, possession, control or wrongful disposition of such property; and at the time of making such order or at any time thereafter, the court may, in its dis- cretion., enjoin and restrain the person or persons so ordered to appear and be examined from in any manner disposing of any property of such corporation which may be in the possession or under the control of the person so ordered to be examined, until the further order of the court in relation thereto. No person so ordered to appear and be examined shall be excused from answer- ing any question on the ground that his answer might tend to convict him of a criminal offense; but his testi- mony taken upon such examination shall not be used against him in any criminal action or proceeding. Any person so ordered to appear and be examined shall be entitled to the same fees and mileage, to be paid at the time of serving the order, as are allowed by law to witnesses subpoenaed to attend and testify in an action in the supreme court, and shall be subject to the same 128 GENEEAL CORPORATION LAW § 241 penalties upon failure to appear and testify in obedience to such an order as are provided by law in the case of witnesses who fail to obey a subpoena to appear and testify in an action. Any person appearing for examinstion in obedience to such order shall be sworn by the court or referee to tell the truth, and shall be entitled to be represented on such examination by counsel, and may be cross- examined, or may make any voluntary statement in his own behalf concerning the subject of his examination which may seem to him desirable or pertinent thereto. The court before which such examination is taken, as well as the referee, if one be appointed for that purpose, shall have power to adjourn such examination from time to time, and may rule upon any question or objection arising in the course of such examination, to the same extent that might be done if the person so examined were testifying as a witness in the trial of an action. When the examination of any person under such order shall be concluded, the testimony shall be signed and sworn to by the person so examined, and shall be iiled in the office of the clerk of the county where the action is pending, or was tried, in which the receiver was ap- pointed; and if from such testimony it shall appear to the satisfaction Of the court that any person so examined is wrongfully concealing or withholding, or has in his possession or under his control, any property which of right belongs to such receiver, the court may make an order commanding the person so examined forthwith to deliver the same to such receiver, who shall hold the same subject to the further order of the court in rela- tion thereto^ and otherwise, the court may, at the con- clusion of any such examination, make such final order in the premises as the interests of justice require. Derivation.— L. 1898, Ch. 534, §§ 1-5. § 241. Power of receiver in the settlement of contro- versies. — If any controversy shall arise between the re- § 241 GENEEAL CORPORATION LAW 129 ceivers and any other person, in the settlement of any de- mands against such corporation, or of debts due to such corporation the same may be referred to one or more in- different persons, who may be agreed upon by the re- ceivers and the party, with whom such controversy shall exist, by a writing to that effect, signed by them. If such referee or referees be not selected by agree- ment, then the receivers or the other party to the con- troversy, provided no action at law is pending arising out of any such debts or demands, may serve a notice of their intention to apply to any judge of the supreme court at chambers, residing in the same district with said receivers, for the appointment of one or more referees, specifying the time and place when such appli- cation will be made, which notice shall be served at least ten days before the time so therein specified. On the day so specified, upon due proof of the service of such notice, the judge before whom the application is made may, in his discretion, proceed to select one or more referees, the same in all respects as they are now selected according to the rules and practice of the supreme court. When any witness to such controversy shall reside out of the county where the said receivers resided at the time of their appointment, the referee or referees ap- pointed to hear said controversy shall have power to issue a commission or commissions in like manner as justices of the peace are now authorized to issue the same, and the testimony so taken shall be returned to said referee or referfees in the same manner, and be read before them on a hearing, in like manner as testimony taken on commission before justices of the peace. The officer before whom they shall be selected, shall certify such selection in writing. Such certificate, or the written agreement of the parties, shall be filed by the receivers in the office of a clerk of the supreme court, and an order shall thereupon be entered by such clerk in vacation or in term, appointing the persons so selected to determine the controversy. 9 130 GENERAL COBPORATION LAW § 242 Such referees shall have the same powers, and be sub- ject to the like duties and obligations, and shall receive the same compensation, as referees appointed by the supreme court, in personal actions pending therein. The report of the referees shall be, filed in the same office where the order for their appointment was entered, and shall be conclusive on the rights of the parties, if not set aside by the court. Derivation.— K. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, §§ 19-25. Sections 19 and 22, as amended by L. 1862, Ch. 373, §§1 and 4. Sections 20 and 21, as amended by L. 1907, Ch. 476, § 1. § 242. Power of receiver to employ counsel. — If the receiver of a corporation employs counsel he shall within three months after he has qualified as receiver enter into a written contract fixing the compensation of such coun- sel at not exceeding a certain amount or a certain per- centage of the sums received and disbursed by him, which contract must be approved by the supreme court, on at least eight days' notice to the attorney-general. A payment by such receiver to his counsel on account of services shall only be made, pursuant to an order of the court, on notice to the attorney-general and subject to review on the final accounting. A contract with coun- sel shall not be made for a longer period than eighteen months, but may be renewed from time to time for periods of not more than one year, if approved by the supreme court on at least eight days' notice to the at- torney-general. In case of the intervention of any policyholder or depositor, by permission of the court, such policyholder or depositor shall defray the legal expenses thereof, and no allowance shall be made for costs or fees to any attorney of such policyholder or depositor. It shall be unlawful for receivers of an insur- ance, banking or railroad corporation, or trust company to pay to any attorney or counsel any costs, fees or allowances until the amounts thereof shall have been stated to the special term as provided in section two §§ 243-245 GENERAL, COBPORATION LAW 131 hundred and forty-nine of this chapter, as expenses in- curred, and shall have been approved by that court, by an order of the court duly entered ; and' any such order shall be the subject of review by the appellate division and the court of appeals on an appeal taken therefrom by any party aggrieved thereby. Deiivation. — " If the receiver " to " In case of the intervention," L. 1883, Ch. 378, § 2a, added by L. 1906, Cb. 348^ | 2. Sentence be- ginning " In case of the intervention,'' L. 1883, Ch. 378, § 5. Ke- mainder of section, L. 1883, Ch. 378, § 4, part, as amended by L. 1896, Ch. 139, § 1. See 1S7 App. Div. 182. § 243. Power of receiver to hold real property. — A re- ceiver, appointed by or pursuant to an order or a judg- ment, in an action in the supreme court or a county court, or in a special proceeding for the voluntary dis- solution of a corporation, may take and hold real prop- erty, upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respecting the disposition hereof. Derivation. — Section 716, Code of Civil Procedure. § 244. Power of receiver to recover stock subscriptions. — If there shall be any sum remaining due upon any share of stock subscribed in such corporation, the re- ceiver shall immediately proceed to recover the same, unless the person so indebted shall be wholly insolvent; and for that purpose may commence and prosecute any action or proceeding for the recovery of such sum, with- out the consent of any creditors of such corporation. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 69. § 245. Duty of receiver to convert assets into money. — The receivers shall, as speedily as possible, convert the property, real and personal, of the corporation into money Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 26, part. 132 GENERAL COBPOEATION LAW §§ 246-248 § 246. Duty of receiver as to private sales. — A receiver duly appointed in this state by and pursuant to a judg- ment in an action, or by and pursuant to an order in a special proceeding, may, upon application to the court by which such judgment was rendered, or such order was made, and upon notice to such parties as may be entitled to notice of applications made in such action or special proceeding, be authorized by the said court to sell or convey the property, whether real or personal, of the corporation of which he is the receiver, at private sale, upon such terms and conditions as the court may direct. Derivation.— L. 1898, Ch. 522, § 1. § 247. Duty of receiver to keep accounts. — They shall keep a regular account of all moneys received by them as receivers; to which, every creditor, or other person interested therein, shall be at liberty, at all reasonable times, to have recourse. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 26, part. § 248. Duty of receiver to serve copy of report upon attorney-general and superintendent of banks. — All re- ceivers of insolvent corporations who are required by law to make and file reports of their proceeding shall at the time of making and filing such reports, serve a copy thereof upon the attorney-general of this state, and re- ceivers of such corporations as report to, and are under the supervision of, the banking department shall on the first day of January and July of each year, during the continuance of their respective trusts, file with the superintendent of banks a report, verified by oath, in such form as the superintendent may prescribe, show- ing the condition of their respective trusts. In case any receiver of an insolvent corporation shall neglect to make and file a report of his proceedings for thirty days after the time he is required by law to make and file such report, or shall neglect for the same length of time. §§ 249, 250 GENEBAL CORPORATION LAW 133 to serve a copy thereof on the attorney-general, as re- quired by this section the attorney-general may make a motion in the supreme court for an order to compel the making and filing and serving a copy on him of such report, or for the removal of such receiver from his ofifice. Derivation — L. 1880, Ch. 537, § 1; L. 1881, Ch. 639, § 1. The last sentence is taken from L. 1880, Ch. 537, § 2. § 249. Duty of certain receivers to make reports. — It shall be the duty of every receiver of an insurance, bank- ing or railroad corporation, or trust company, to present every six months to the special term of the supreme court, held in the judicial district wherein the place of trial or venue of the action or special proceeding in which he was appointed may then be, on the first day of its first sitting, after the expiration of such six months, and to file a copy of the same, if a receiver of a bank or trust company, with the superintendent of banks; if a re- ceiver of an insurance company, with the superintendent of insurance ; and in each case with the attorney-gen- eral, an account exhibiting in detail the receipts of his trust, and the expenses paid and incurred therein dur- ing the preceding six months. Of the intention to pre- sent such account, as aforesaid, the attorney-general, and also the surety or sureties on the official bond of such receiver, shall be given eight days' notice in writ- ing; and the attorney-general shall examine the books and accounts of such receiver at least once every twelve months. Derivation.— L. 1883, Ch. 378, § 4, part; L. 1885, Ch. 40, § 1; L. 1896, Ch. 139, § 1. § 250. Duty of receivers to give notice to creditors. — The receivers immediately upon their appointment, shall give notice thereof which shall be published for three weeks in a newspaper printed in the county where the principal place of conducting the business of such cor- 134 GEKERAL COBPOBATION LAW §§ 251, 252 poration shall have been situated; and therein shall re- quire, 1. All persons indebted to such corporation, by a day and at a place therein to be specified, to render an ac- count of all debts and sums of money dwing by them re- spectively, to such receivers and to pay the same.' 2. All persons having in their possession any property or effects of such corporation to deliver the same to the said receivers by the day so appointed. 3. All the creditors of such corporation to deliver their respective accounts and demands to the receivers or one of them, by a day to be therein specified, not less than forty days from the first publication of such notice. 4. All persons holding any open or subsisting contract of such corporation, to present the same in writing and in detail to such receivers, at the time and place in such notice specified. Derivation. — Paragraphs 1-3 are from E. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 8. Paragraph 4 is derived from R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 70. § 251. Delivery of property and payment of debts to receiver after notice. — After the first publication of the notice of the appointment of receivers, every person hav- ing possession of any property belonging to such cor- poration, and every person indebted to such corporation, shall account and answer for the amount of such debt and for the value of such property to the said receivers. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 72, part. § 252. Penalty for concealing property from receiver. — Every pers«n indebted to such corporation, or having the possession or custody of any property or thing in action, belonging to it, who shall conceal the same, and not deliver a just and true account of such indebtedness, or not deliver such property or thing in action, to the receivers, or one of them, by the day for that purpose appointed, shall forfeit double the amount of such debt, §§ 253-256 6EKEBAL COBPOBATION LAW 135 or double the value of such property so concealed ; which penalties may be recovered by the receivers. ]6erivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 11. § 253. Duty of receiver to call creditors' meeting. — They shall call a general meeting of the creditors of such corporation, within four months from the time of their appointment by a notice to be published in the same manner, as hereinbefore directed respecting the publica- tion of the notice of their appointment; in which notice, they shall specify the place and time of such meeting, which time shall not be more than three months, nor less than two months after the first publication of such notice. Every such notice shall be published at least once in each week, until the time of such meeting. Derivation. — First clause, to "time of their appointment," R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 74, part; from "by a notice" to "of such meeting," R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 27. § 254. Proceedings .at creditors' meeting. — ^At such meeting, or other adjourned meeting thereafter, all ac- counts and demands for and against such corporation, and all its open and subsisting contracts, shall be ascer- tained and adjusted as far as may be, and the amount of moneys in the hands of the receivers declared. Derivationi. — "At such meeting " to " thereafter," from R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 28, part; remainder of section, from R. S., Pt. 3, Ch. 8, Tit. 4, Art. 8, § 74, part. § 255. Deduction of disbursements and commissions by receiver. — Out of the moneys in their hands the re- ceivers may first deduct all the necessary disbursements made by them in the discharge of their duty and such commissions as may be allowed by law. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 29. § 256. Refunding consideration of subsisting con- tracts. — If there shall be any open and subsisting en- 136 GENERAL COBPORATION LAW §§ 257,258 gagements or contracts of such corporation, which are in the nature of insurances or contingent engagements of any kind, the receivers may, with the consent offthe party holding such engagement, cancel and discharge the same, by refunding to such party the premium or consideration paid thereon by such corporation, or so much thereof as shall be in the same proportion to the time which shall remain of any risk assumed by such engagement, as the whole premium bore to the whole term of such risk ; and upon such amount being paid by such receivers to the person holding or being the legal owner of such engagement, it shall be deemed canceled and discharged as against such receivers. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 75. § 257. Retention of funds for subsisting contracts and pending suits. — The receivers shall retain out of the moneys in their hands, a sufficient amount to pay the sums, which they are hereinbefore authorized to pay, for the purpose of canceling and discharging any open or subsisting engagements. If any suit be pending against the corporation or against the receivers, for any de- mand, the receivers may retain the proportion which would belong to such demand if established, and the necessary costs and proceedings, in their hands, to be applied according to the event of such suit, or to be distributed in a second or other dividend. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, §§ 77, 78. § 258. Payment of debts not due. — Every person to whom a corporation shall be indebted on a valuable con- sideration, iof any sum of money not due at the time of such distribution, but payable afterwards, shall receive his proportion with other creditors, after deducting a rebate of legal interest upon the sum distributed, for the time unexpired of such credit. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, S 35. §§ 259-261 GENEEAL COEPORATION LAW 137 § 259. Allowance of set-offs. — Where mutual credit has been given by any corporation, and any other per- son, or mutual debts have subsisted between such cor- poration and any other person, the receivers may set off such credits or debts, and pay the proportion or receive the balance due. But no set-off shall be allowed of any claim or debt, which would not have been entitled to a dividend, as hereinbefore directed. No set-off shall be allowed by such receivers, of any claim or debt, which shall have been purchased by, or transferred to, the person claiming its allowance, which could not have been set off by him, in a suit brought by such receivers. Derivation. — First paragraph from K. S., Pt. 2, Oh. 5, Tit. 1, Art. 8, § 36. Second paragraph from R. S., Pt. 2, Ch. 5, Art. 8, § 37. § 260. Penalties recovered by receiver. — All penalties which shall be recovered by any receivers, pursuant to the provisions of this article, shall be deemed a part of the property of the corporation, and shall be distributed as such among its creditors. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 39. § 261. Order of payment by receiver. — The receivers shall distribute the residue of the moneys in their hands, among all those who shall have exhibited their claims as creditors, and whose debts shall have been ascertained, as follows: 1. All debts due by such corporation to the United States, and all debts entitled to a preference under the laws of the United States. 2. All debts that may be owing by the corporation as guardian, executor, administrator or trustee; and if there be not sufficient to pay all debts of the character above specified, then a distribution shall be made among them, in proportion to their amounts respectively. 3. Judgments actually obtained against such corpora- 138 GENERAL COBPOKATION LAW §§ 261-0-263 tion, to the extent of the value of the real estate on which they shall respectively be liens. 4. All other creditors of such corporation, in propor- tion to their respective demands, without giving any preference to debts due on specialties. « Derivation.— First clause to colon (:), R. S., i"t. 3, Ch. 8, Tit. 4, Art. 3, § 79, part; subd. 1, " all debts due by such corporation to the United States and," R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 32; subd. 1, " all debts entitled to a preference under the laws of the United States," E. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 79, part; subd. 2, R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 34; subds. 3 and 4, R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 79, part. See 136 N. Y. Supp. '312, 313. § 261-a. P.ayment of wages by receivers. — ^Upon the appointment of a receiver of a corporation organized under the laws of this state and doing business therein, other than a moneyed corporation, the wages of the em- ployees of such corporation shall be preferred to every other debt or claim. The provisions of section two hun- dred and thirty of this chapter do not apply to the pro- visions of this section. Added by L. 1921, Ch. 22. § 262. Failure to file claim before first dividend. — Every creditor who shall have neglected to exhibit his demand before the first dividend, and who shall deliver his account to the receivers before the second dividend, shall receive the sum he would have been entitled to on the first dividend, before any distribution be made to the other creditors. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 81, part. See 136 N. Y. tupp. 312, 313. § 263. Second dividend by receiver. — If the whole of the property of such corporation be not distributed on the first dividend, the receivers shall, within one year thereafter, make a second dividend of all the moneys in their hands, among the creditors entitled thereto; of §§ 264, 265 GENERAL CORPORATION LAW 139 which, and that the same will be a final dividend, three weeks' notice shall be inserted once in each week in a newspaper printed in the county where the principal place of business of such corporation was situated. Such second dividend shall be made in all respects in the same manner as herein prescribed in relation to the first dividend, and no other shall be made thereafter among the creditors cf such corporation, except to the creditors having suits against it, or against the receivers, pending at the time of such second dividend, and except of the moneys which may be retained to pay such credi- tors, as herein provided. Derivation.— First paragraph, R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 80. Second paragraph, R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 81, part. See 136 N. Y. Supp. 312, 313. § 264. Surplus to stockholders. — If after the second dividend is made, there shall remain any surplus in the hands of the receivers, they shall distribute the same among the stockholders of such corporation, in propor- tion to the respective amounts paid in by them, sever- ally, on their shares of stock. Derivation.— E. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 83. See 136 N. Y. Supp. 312, 313; 78 Misc. 78. § 265. Disposition of moneys retained by receiver for suits. — When any suit pending at the time of the second dividend shall be terminated, they shall apply the moneys retained in their hands for that purpose, to the payment of the amount recovered, and their necessary charges and expenses; and if nothing shall have been recovered, they shall distribute such moneys, after deducting their expenses and costs, among the creditors and stock- holders of the corporation, in the same manner as herein directed in respect to a second dividend. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 84. See 136 N. Y, Supp. 312, 313. 140 GENEEAL COEPORATION LAW §§ 266-268 § 266. Duty of receiver as to unclaimed dividend. — If any dividend that shall have been declared, shall re- main unclaimed by the person entitled thereto for one year after the same was declared, the receivers shall con- sider it as relinquished, and shall distribute it, on any subsequent dividend, among the other creditors. Derivation.— K. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 42. See 136 N. Y. Supp. 312, 313. § 267. Effect of failure to file claim before second divi- dend. — After such second dividend shall have been made, the receivers shall not be answerable to any creditor of such corporation, or to any person having claims against such corporation, by virtue of any open or subsisting engagement, unless the demands of such creditors shall have been exhibited, and the engagements upon which such claims are founded, shall have been presented to the said receivers,, in detail and in writing, before or at the time specified by them in their notice of a second dividend. Derivation.— E. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 82. § 268. Final accounting by receiver. — A receiver shall apply within one year after qualifying as such for a final settlement of his accounts and an order for dis- tribution, or shall apply to the court upon notice to the attorney-general for an extension of time, setting forth the reasons why he is unable to close his accounts, which order may be granted in the discretion of the court. The attorney-general or any creditor, or any party in- terested, may apply for an order that the receiver show cause why an'accounting and distribution shall not be had at any time after the expiration of one year after the receiver qualifies; and it shall be the duty of the attorney-general after the expiration of eighteen months from the time the receiver enters upon his duties, in case he has not applied for a final settlement of his ac- counts, to apply for such an order on notice to such re- §§ 269-272 GENEEAL CORPOBATION LAW 141 ceiver. In case of such application by a party other than the receiver the court shall direct the receiver to take steps to account with all convenient speed. The receiver is not required or authorized to file any ac- count, except as herein provided, except by special order of the court. § 269. Notice of final accounting. — Previous to render- ing such account the receivers shall insert a notice of their intention to present the same, once in each week, for three weeks, in a newspaper, of the county in which notices of dividends are herein required to be inserted, specifying the time and place at which such account will be rendered. Said receivers shall also give notice to the sureties on their official bonds, as provided in section two hundred and twenty-seven of this chapter. Amended by L. 1909, Ch. 240, § 42. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 87. § 270. Hearing on final accounting. — Upon the com- ing in of such report, the court shall hear the allegations of all concerned therein, and shall allow or disallow such account, and decree the same to be final and con- clusive upon all the creditors of such corporation, upon all persons who have claims against it, upon any open or subsisting engagement, and upon all the stockholders of such corporation. Derivation.— K. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 89, part. § 271. Reference of final account. — The referee to whom such account shall be referred, shall hear and ex- amine the proofs, vouchers and documents offered for or against such account, and shall report thereon fully to the court. Derivatioa— E. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 88. § 272. Further accounting. — Such receivers shall also account from time to time in the same manner, and with 142 GENERAL CORPOBATION LAW §§ 273-275 the like effect, for all moneys which shall come to their hands after the rendering of such account, and for all moneys which shall have been retained by them for any of the purposes hereinbefore specified, and shall pay into court all unclaimed dividends. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, §, 89, part. § 273. Removal of receiver. — Such receivers may be removed by the court. Derivation.— K. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 85, part. See 155 App. Div. 333. § 274. Vacancy. — Any vacancy created by removal, death or otherwise, may be supplied by the court. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 85, part. See 155 App. Div. 334. § 275. Renunciation by receiver. — Any receiver who shall be desirous of renouncing the trust vested in him, may apply to the court from whom his appointment was received, for an order to all persons interested, to show cause why such renunciation should not be accepted. Such application shall be accompanied by a full, true and just account of all the transactions of such receiver, and particularly of the property, moneys and effects re- ceived by him; of all payments made, whether to credi- tors or otherwise ; and of the remaining effects and prop- erty of the corporation, in respect to which he was ap- pointed receiver, within his knowledge, and the situa- tion of the same. To such account shall be annexed the affidavit of the receiver, that frie said account is in all respects just and true, according to the best of his knowledge and belief; which affidavit shall be subscribed and sworn to, before the court, to whom the application is made, and shall be certified by the clerk of the court. Such court, shall thereupon grant an order, directing notice to be given to all persons interested in the prop- § 276 GENERAL COEPOKATION LAW 143 erty of the corporation, in respect to which such re- ceiver was appointed, to show cause on a day or at a term and at a place therein to be specified, why he should not be permitted to renounce his appointment. Such notice shall be published, once in each week, for six weeks successively in such newspapers, as such court shall direct. On the day appointed for such hearing, and on such other days as shall from time to time be appointed, if it shall appear that notiqe was duly published, the court shall proceed to hear the proofs and allegations of the parties. If it shall appear that the proceedings of such receiver, in relation to his trust, have been fair and honest, and particularly in the collection of the property and debts vested in him ; and if such court be satisfied that for any reason it is inexpedient for such receiver to continue in' the executions of the duties of his appointment, and that such duties can be executed by another receiver, with- out injury to the property of the corporation, or to the creditors; and if no good cause to the contrary appear, such court shall grant an order, allowing such receiver to renounce his appointment. Upon such order being granted, such receiver shall be discharged from the trust reposed in him, and his power and authority shall thereupon cease; but he shall, not- withstanding, remain subject to any liability he may have incurred, at any time previous to the granting of such order, in the management of his trust. The expense of all proceedings in efifecting such re- nunciation shall be paid by the receiver making the application. Derivation.— K. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, §§ 49, 51, 52, 53, 54, 55, 56, 60, 62. § 276. Control of receiver by court. — The receivers shall be subject to the control of the court and may be compelled to account at any time. Derivation.— K. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 85, part. 144 GENERAL COEPOKATION LAW §§ 277, 278 § 277. Commissions and expenses of receiver in volun- tary dissolution. — A receiver appointed pursuant to article nine is entitled, in addition to his necessary ex- penses, to commissions upon the sums received and dis- bursed by him as the court by which* or the judge by whom he is appointed allows, as follows : On the first twenty thousand dollars not exceeding five per centum; on the next eighty thousand dollars, not exceeding two and one-half per centum; and on the remainder, not ex- ceeding one per centum; but in case the commissions of a receiver so computed shall not amount to one hun- dred dollars, said court or judge may in his or its dis- cretion allow said receiver such a sum not exceeding one hundred dollars for his commissions as shall be commensurate with the services rendered by said receiver. § 278. Commissions and expenses of receiver except in voluntary dissolution. — A receiver of a corporation, except a receiver appointed in proceedings for its volun- tary dissolution, is entitled, in addition to his necessary expenses, to such commissions, not exceeding two and one-half per centum upon the sums received and dis- bursed by him, as the court by which or the judge by whom he is appointed allows, but except upon a final accounting such a receiver shall not receive on account of his services for any one year a greater amount than twelve thousand dollars, nor for any period less than a year more than at that rate. Upon final accounting, the court may make an additional allowance to such receiver, not exceeding two and one-half per centum upon the sums receive^ and disbursed by him, if the court is satisfied that he has performed services that fairly en- title him to such additional allowance. Where more than one receiver shall be appointed, the compensation herein provided shall be divided between said receivers. Derivation.— L. 1883, Ch. 378, § 2; L. 1886, Ch. 275, § 1; L. 1901, Ch. 506, § 1; L. 1906, Ch. 349, § 1. § 300 GENERAL COEPOEATIOW LAW 145 ARTICLE 12 Provisions Applicable to Two or More of the Foregoing Proceedings or Actions Section 300. Application of preceding articles to certain corpora- tions. 301. Officers and agents may be compelled to testify in cer- tain actions. 302. Injunction staying actions by creditors in certain actions. 303. Creditors of corporation may be brought in to prove their claims in certain actions. 304. When attorney-general must bring certain actions. 305. Requisites of injunction against corporations in cer- tain cases. 306. Appointment of receivers of property of corporations. 307. Judicial suspension or removal of officer of corporation. 308. Application of the last three sections. 309. Misnomer not available in action against stockholder. 310. Appraisal of property of insolvent corporation. 311. Application by attorney-general for removal of receiver and to facilitate closing affairs of receivership. 313. Service of papers upon attorney-general. 313. Designation of depositories of funds in order appoint- ing receiver. 314. Application to the court in certain actions and pro- ceedings. 316. County wherein action may be brought by attorney- general on behalf of the people. 316. Preferences in actions *of proceedings by or against receivers. § 300. Application of preceding articles to certain cor- porations. — Articles fifth, sixth or seventh of this chapter do not apply to a religious corporation ; or to a municipal or other political corporation, created by the constitution, or by or under the laws of this state ; or to any corpora- tion which the regents of the university have power to dissolve, except upon the application of the regents, or of the trustees of such a corporation; and in aid of its liquidation under such dissolution. * So in original. 10 146 GBKEEAL COEPOEATION LAW §§ 301-303 § 301. Officers and agents may be compelled to testify in certain actions. — In an action, brought as prescribed in article fifth, sixth or seventh, a stockholder, officer, alienee, or agent of a corporation, is not excused from answering a question, relating to the management of the corporation, or the transfer or disposition of its property, on the ground that his answer may expose the corpora- tion to a forfeiture of any of its corporate rights, or will tend to convict him of a criminal offense, or to subject him to a penalty or forfeiture. But his testimony shall not be used, as evidence against him, in a criminal action or special proceeding. § 302. Injunction staying actions by creditors in cer- tain actions. — In such an action, the court may, in its discretion, on the application of either party, at any stage of the action, before or after final judgment, and with or without security, grant an injunction order, re- straining the creditors of the corporation from bringing actions against the defendants, or any of them, for the recovery of a sum of money, or from taking any further proceedings in such actions, theretofore commenced. Such an injunction has the same effect, and, except as otherwise expressly prescribed in this section, is sub- ject to the same provisions of law, as if each creditor, upon whom it is served, was named therein, and was a party to the action in which it is granted. § 303- Creditors of corporation may be brought in to prove their claims in certain actions. — In such an action, the court may, at any stage of the action, before or after final judgment^ make an order requiring all the creditors of the corporation to exhibit and prove their claims, and thereby make themselves parties to the action, in such a manner, and in such a reasonable time, not less than six months from the first publication of notice of the ordet as the court directs ; and that the creditors, who make default in so doing, shall be precluded from all benefit § 304 GENERAL COEPOEATION LAW 147 of the judgment, and from any distribution which may be made thereunder, except as hereinafter provided. Notice of the order must be given by publication, in such newspapers, and for such a length of time, as the court directs. Notwithstanding such order any such creditor who shall exhibit and prove his claim in the manner directed thereby, with proof, by affidavit or otherwise, that he has had no notice or knowledge thereof in time to comply therewith, any time before an order is made directing a final distribution of the assets of such corporation, shall be entitled to have his claim received, and shall have the same rights and benefits thereon, so far as the assets of such corporation then remaining undistributed may render possible, as if his claim had been exhibited and proved within the time limited by such order. § 304. When attorney-general must bring certain actions. — Where the attorney-general has good reason to believe, that an action can be maintained in behalf of the people of the state, as pr-escribed in articles fifth, sixth or seventh of the chapter, except section one hundred and thirty of this chapter, he must bring an action accordingly, or apply to a competent court for leave to bring an action, as the case requires; if, in his opinion, the public interests require that an action should be brought. In a case where the action can be brought only by the attorney-general in behalf of the people, if a creditor, stockholder, director, or trustee of the corporation, applies to the attorney-general for that purpose, and furnishes the security required by law, the attorney-general must bring the action, or apply for leave to bring it, if he has good reason to believe, that it can be maintained. Where such an application is made section nineteen hundred and eighty-six of the code of civil procedure applies thereto, and to the action brought in pursuance thereof. 148 GENERAL COKPORATION LAW §§ 305,306 § 305. Requisites of injunction against corporations in certain cases. — An injunction order, suspending the gen- eral and ordinary business of a corporation, or suspend- ing from office, or restraining from the performance of his duties, a trustee, director, or other officer thereof, can be granted only by the court, upon notice of the application therefor, to the proper officer of the corpora- tion, or to the trustee, director, or other officer enjoined. If such an injunction order is made, otherwise than as , prescribed in this section, it is void. See 70 Misc. 628. § 306. Appointment of receivers of property of cor- porations. — A receiver of the property of a corporation can be appointed only by the court, and in one of the following cases : 1. An action, brought as prescribed in articles fifth, sixth or seventh of this chapter. 2. An action brought for the foreclosure of a mortgage upon the property, of which the receiver is appointed, where the mortgage debt, or the interest thereupon, has remained unpaid, at least thirty days after it was pay- able, and after payment thereof was duly demanded of the proper officer of the corporation and where either the income of the property is specifically mortgaged, or the property itself is probably insufficient to pay the mortgage debt. 3. An action brought by the attorney-general, or by a stockholder, to preserve the assets of a corporation, hav- ing no officer empowered to hold the same. 4. A special proceeding for the voluntary dissolution of a corporatian. 5. Upon the application of the regents of the univer- sity, in aid of the liquidation of a corporation whose dis- solution they contemplate or have decreed; or upon the application of the trustees of such a corporation, with notice to the regents. Where the receiver is appointed in an action, other- §§ 307-309 GENERAL CORPORATION LAW 149 wise than by or pursuant to a final judgment, notice of the application for his appointment must be given to the proper officer of the corporation. See 155 App. Div. 336; 144 App. Div. 483. § 307- Judicial suspension or removal of officer of cor- poration. — A trustee, director, or other officer of a cor- poration shall not be suspended or removed from office, by a court or judge, otherwise than by the final judg- ment of a competent court, in an action brought by the attorney-general, as prescribed in section ninety of this chapter. See 201 N. Y. 202; 80 Misc. 434. § 308. Application of the last three sections. — The last three sections apply to an action or special proceed- ing, against a corporation created by or under the laws of the state, or a trustee, director or other officer thereof ; or against a corporation created by or under the laws of another state, government, or country, or a trustee, director, or other officer thereof, where the corporation does business within the state, or has, within the state, a business agency or a fiscal agency, or an agency for the transfer of its stock. § 309. Misnomer not available in action against stock- holder. — Where an action, authorized by a law of the state, is brought against one or more persons, as stock- holders of a corporation, an objection to any of the pro- ceedings can not be taken, by a person properly made a defendant in the action on the ground that the plaintiff has joined with him, as a defendant in the action, a per- son, whose name appears on the stock-books of the cor- poration, as a stockholder thereof, by the name so appear- ing; but who is misnamed, or dead, or is not liable for any cause. In such a case, the court may, at any time before final judgment, upon motion of either party, amend the pleadings and other papers, without prejudice to the 150 GENERAL CORPOKATION LAW §§ 310,311 previous proceedings, by substituting the true name of the person intended, or by striking out the name of the person who is dead, or not liable, and, in a proper case, inserting the name of his representative or successor. § 310. Appraisal of property of insolvent corporation. — Whenever by reason of the provisions of any law of this state it shall become necessary to appraise in whole or in part the property of any corporation in the hands of a receiver or otherwise, the persons whose duty it shall be to make such appraisal shall value the real estate at its full and true value, taking into consideration actual sales of neighboring real estate similarly situated during the year immediately preceding the date of such appraisal, if any; and they shall value all such property, stocks, bonds or securities as are customarily bought or sold in open markets in the city of New York or elsewhere, for the day on which such appraisal or report may be re- quired, by ascertaining the range of the market and the average of prices as thus found, running through a reasonable period of time. Derivation.— L. 1891, Ch. 34, § 1. § 311. Application by attorney-general for removal of receiver and to facilitate closing affairs of receivership. — The attorney-general may, at any time he deems that the interests of the stockholders, creditors, policy-hold- ers, depositors or other beneficiaries interested in the proper and speedy distribution of the assets of any in- solvent corporation will be subserved thereby, make a motion in the supreme court at a special term thereof, in any judicial district: 1. For an order removing the receiver of any insolvent corporation and appointing a receiver thereof in his stead, or, 2. To compel him to account, or, 3. For such other and additional order or orders as to §§ 312, 313 GBNEBAIi CORPORATION LAW 151 him may seem proper to facilitate the closing up of the affairs of such receivership, and Any appeal from any order made upon any motion under this section shall be to the appellate division of the department in which such motion is made. Derivation.— L. 1883, Ch. 378, § 7. § 312. Service of papers upon attorney-general. — A copy of all motions and all motion papers, and a copy of any other application to the court, together with a copy of the order or judgment to be proposed thereon to the court, in every action or proceeding for the dissolution of a corporation or a distribution of its assets, shall, in all cases, be served on the attorney-general, in the same manner as provided by law for the service of papers on attorneys who have appeared in actions, whether the applications but for this section would be ex parte or upon notice, and no order or judgment granted shall vary in any material respect from the relief specified in such copy, order or judgment, unless the attorney- general shall appear on the return day and shall have been heard in relation thereto; and any order or judg- ment granted in any action or proceeding aforesaid, without such service of such papers upon the attorney- general, shall be void, and no receiver of any such cor- poration shall pay to any person any money directed to be paid by any order or judgment made in any such action or proceeding, until the expiration of eight days after a certified copy of such order or judgment shall have been served as aforesaid upon the attorney-general. Derivation.— L. 1883, Ch. 378, § 8. § 313. Designation of depositories of funds in order ap- pointing receiver. — All orders appointing receivers of corporations shall designate therein one or more places of deposit, wherein all funds of the corporation not needed for immediate disbursement shall be deposited and no deposits or investments of such trust funds shall 152 GENERAL CORPORATION LAW §§ 314-316 be made elsewhere, except upon the order of the court upon- due notice given to the attorney-general. Derivation.— L. 1883, Ch. 378, § 3. § 314. Application to the court in certain actions and proceedings. — All applications to the court shall be made in the judicial district where the principal office of the corporation against which proceedings are taken is located, excepting such applications as are made in ac- tions brought by the attorney-general on behalf of the people of the state, and all such applications shall be made in the judicial district in which the action is triable.' Derivation.— L. 1883, Ch. 378, § 9; L. 1896, Ch. 283, § 2. § 315. County wherein action may be brought by at- torney-general on behalf of the people. — ^An action or proceeding brought by the attorney-general on behalf of the people of the state against any corporation for the purpose of procuring its dissolution, the appointment of a receiver, or the sequestration of its property, may be brought in any county of the state, to be designated by the attorney-general. Derivation.— L. 1883, Ch. 378, § 1, part; L. 1896, Ch. 283, § 1. § 316. Preferences in actions or proceedings by or against receivers. — All actions or other legal proceedings and appeals therefrom or therein brought by or against a receiver of any of the insolvent corporations referred to in this chapter, shall have a preference upon the calen- dars of all courts next in order to actions or proceedings brought by the people of the state of New York. Derivation.— L. 1883, Ch. 378, § 10. §§ 320,321 GENERAL CORPORATION LAW 153 ARTICLE 13 Alteration and Repeal of Charter of Corporation Section 320. Alteration and repeal of charter. 331. Conflicting corporate laws. § 320. Alteration and repeal of charter. — The charter of every corporation shall be subject to alteration, sus- pension and repeal, in the discretion of the legislature. Former § 40, General Corporation Law. Derivation.— L. 1895, Ch. 672, § 2. See 140 App. Div. 843 ; 124 App. Div. 265. § 321. Conflicting corporate laws. — If in any corpo- rate law there is or shall be any provision in conflict with any provisions of this chapter or of the stock corporation law, the provisions so conflicting shall prevail, and the provision of this chapter or of the stock corporation law with which it conflicts shall not apply in such a case. If in any such law there is or shall be a provision relating to a matter embraced in this chapter or in the stock cor- poration law, but not in conflict with it, such provision in such other law shall be deemed to be in addition to the provision in this chapter or in the stock corporation law relating to the same subject-matter, and both pro- visions shall, in such case, be applicable. Former § 33, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 33. 154 GBNEBAI. COEPOBATION LAW §§ 330-332 ARTICLE 14 Laws Repealed; Construction; When to Take Effect Section 330. Laws repealed. 331. Construction. 332. When to take effect. § 330. Laws repealed. — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is hereby repealed. Former § 34, General Corporation Law, altered. Derivation.— L. 1898, Ch. 687, § 34. § 331' Construction. — Nothing in this chapter shall be construed to impair any right or liability which any existing corporation, its officers, directors, stockholders or creditors may have or be subject to or which any such corporation, other than a railroad corporation, had or was subject to on the date when this chapter takes effect, by virtue of any special act of the legislature creating such corporation or creating or defining any such right or liability, unless such special act is repealed by this chapter or the other general laws hereinbefore mentioned. Former § 36, General Corporation Law, altered. Derivation.— L. 1893, Cli. 687, § 36. § 332. When to take effect. — This chapter shall take effect immediately.* Schedule of Laws Repealed Revised Statutes. . Part i, chapter 18, All Revised Statutes . . Part 3, chapter 8, title 4, sections 2, 42 Revised Statutes . . Part 3, chapter 8, title 4, article 3, • §§ 66-91 Laws of Chapter Section 1811 67 All 1811 23s All 1813 78 All "Became a law February 17, 1909. GENERAL CORPORATION LAW 155 Laws of Chapter Section i8is 47 All 1815 202 All 1816 58 All 1817 223 ,. All 1818 67 All 1819 102 All 1821 14 All 1822 213 All 1825 325 4-11, 13, 14, 17, 18 1828 21 I, Till 76, 77, 457 (2d Meet.) 1836 284 All 1836 316 All 1838 160 All 1838 161 All 1838 262 All 1839 218 All 1842 165 All 1846 155 All 1846 215 17, 18 1847 100 3, 4 1847 210 All 1847 222 All 1847 270 All 1847 272 All 1847 287 All 1847 398 All 1847 404 ^^^ 1847 405 All 1848 37 All ,^ 1848 40 All ,,. ^ 1848 45 All 1848 140 All 1848 259 All 1848 265 All 1848 360 All 1849 250 All 1849 362 All 1850 71 All \QQ GENERAL CORPORATION LAW Laws of Chapter Section 1850 140 All 1851 14 All 1851 19 All 1851 98 All 1851 107 All 1851 487 All 1851 497 All 1852 228 All 1852 372 All 1853 S3 All 1853 "7 All 1853 124 All 1853 135 All 1853 245 All 1853 333 All 1853 471 1.2,4 1853 481 All 1853 502 All 1853 , 626 All 1854 3 All 1854 87 All 1854 140 All 1854 201 All 1854 232 All 1854 269 All 1854 , 282 All 1854 312 All 1855 301 All 1855 302 All 1855 390 All 185s ,,478 All 1855 48s All i8ss 495 All 1855 • 546 All 1855 559 All 1856 65 All 1857 29 All .1857 83 All GENERAL CORPORATION LAW 157 Laws of Chapter Section 1857 185 All 1857 202 All 1857 262 All 1857 444 All 1857 546 All 1857 558 All 1857 643 All 1857 776 All 1858 10 All 1858 125 All 1858 348 All 1859 209 All 1859 311 All 1859...:.... 455 All i860 116 All i860 269 All i860 523 All 1861 149 All 1861 170 All 1861 215 All 1861 238 All 1862 205 All 1862 248 All 1862 425 All 1862 438 All 1862 449 All 1862 472 All 1863 63 All 1863 134 All 1863 346 All 1864 85 All 1864 337 All 1864 517 All 1864 582. All 1865 234 All 1865 246 , All 1865 307'. All 1865 691 All 158 GENERAL CORPORATION LAW lavs of Chapter Section 1865 780 All 1866 73 All 1866 259 All 1866 322 All 1866 371 All 1866 €97 All 1866 780 All 1866 799 All 1866 838 All 1867 12 All 1867 49 All 1867 248 All 1SI57 254 All 1867 419 All 1867 480 All 1867 509 All 1867 775 All 1867 906 All 1867 937 All 1867 960 All 1867 971 All 1867 974 All 1868 253 All 1868 290 All 1868 573 All 1868 781 All 1869 234 All 1869 237 All 1869 605 All 1869 706 All 1869 ,844 All 1869 917 All 1870 124 All 1870 135 All 1870 322 All 1870 443 All 1870 568 All 1870 773 All GENERAL CORPORATION LAW 159 Laws of Chapter Section 1871 95 All 1871 4«i All i«7i 535 AH 1871 560 All 1871 652 All 1871 657 All 1871 669 All 1871 697 All 1871 883 All 1872 81 All 1872 128 All 1872 146 All 1872 248 All 1872 283 All 1872 350 All 1872 374 All 1872.... 426 All 1872 609 All 1872 611 All 1872 779 All 1872 780 All 1872 820 All except 20 1872 829 All 1872 843 All 1873 151 All 1873 352 All 1873 432 All 1873 440 All 1873 469 All 1873 616 All 1873 634 All 1873 710 All 1873 737 All 1873 814 , All 1874 76 All 1874 143 All 1874 149 All 160 GENERAL CORPORATION LAW Laws of Chapter Section 1874 ^ 240 All 1874 288 All 1874 430 All 1875 4 All 1875 58 All 1875 88 All 1875 108 All 1875 113 All 1875 119 All 1875 120 All 1875 159........ All 1875 193 AH 1875 256 All 1875 319 All 1875 343 2, 4, 8 1875 365 All 187s 445 All 1875 510 AH 1875 586 All 1875 598 All 1875 606 All 1875 611 All 1876 -jj All 1876 135 All 1876 190 All 1876 198 All 1876 280 All 1876 358 All 1876 373 Al! 1876 415 All 1876 • 435 All 1876 446 All 1877 103 All 1877 158 All 1877 164 All 1877 171 All 1877 224 All GENERAL CORPORATION LAW X61 Laws of Chapter Section 1877 266 All 1877 311 All 1877 • 374 All 1878 35 All 1878 61 All 1878 85 All 1878 121 All 1878 163 All 1878 203 All 1878 210 All 1878 261 All 1878 264 All 1878 316 All 1878 334 All 1878! 394 All 1879 214 All 1879 253 All 1879 290 All 1879 293 All 1879 350 All 1879 377 All 1879 393 All 1879 395 All 1879 413 AH 1879 415- •• All 1879 441 All 1879 503 All 1879 505 All 1879 512 All 1879 541 All 1880 s All 1880 85 All 1880 90 All 1880 94 All 1880 113 All 1880 133 All r88o 155 All 11 162 GENERAL CORPORATION LAW Laws of Chapter Section 1880 182 All 1880 187 All 1880 223 All 1880 225 All 1880 241 All 1880 245 I, 1[ 3, subd. 5, part relating to receivers appointed as prescribed in Code Civil Procedure, § 2429 1880 254 All 1880 263 All 1880 267 All 1880 349 All 1880 415 All 1880 417 All 1880 474 All 1880 484 All 1880 510 All 1880 537 All 1880 575- All 1880 582. All 1880 583 All 1880 585 All 1881 22 All 1881 58 All 1881 yy All 1881 116 All 1881 117 All 1881 148 All 1881 213 All 1881 ! 232 All 1881 29s All 1881 296 All 1881 311 All 1881 313 All 1881 321 All 1881 337 AH GENERAL CORPORATION LAW 163 Laws of Cliapter Section i88l 338 All 1881 351 All 1881 399 All 1881 422 All 1881 464 All 1881 468 All 1881 470 All 1881 472 All 1881 485 All 1881 551 All 1881 589 All 1881 639 All 1881 649 All 1881 650 All 1881 674 All 1881 685 All 1882 73 All 1882 82 All 1882 140 All 1882 273 All 1882 289 All 1882 290 All 1882 306 All 1882 309 All 1882 331.. All 1882 349 All 1882 353 All 1882 393 All 1882 405 All 1883 46 All 1883 71 All 1883 102 All 1883 216 All 1883 232 All 1883 237 All 1883 238 All 1883 240 All 1883 287 All 164 GENERAL CORPORATION LAW Laws of Chapter Section 1883 323 All 1883 361 All 1883 378 All 1883 381 All 1883 382 All 1883 384 All 1883 386 All 1883 387 All 1883 388 All 1883 409 All 1883 482 All 1883 483 All 1883 497 All 1884 140 All .. ~ 1884 193 All 1884 208 All 1884 223 All 1884 252 All 1884 267 All 1884..... 285 I 1884 367 All 1884 386 All 1884 397 All 1884 421 All 1884 422 All 1884 439 All 1884 441 All 1884 444 All 1885 40 AH 1885 84 All 1885 127 All 1885 141 All 1885 153 All 1885 171 All 1885 ' 305 All 1885 369 All 1885 422 All 1885 423 All GENERAL CORPORATION LAW 165 Laws of Chapter Section 1885 489 All 1885 498 All 1885 535 AH 1885 540 All 1885 549 AH 1886 65 All 1886 182 All 1886 271 All 1886 275 All 1886 310 All 1886 321 All 1886 322 All 1886 403 All 1886 415 -•• AH 1886 509 AH 1886 551 AH 1886 579 AH 1886 586 AH 1886 592 AH 1886 601 AH 1886 605 , AH 1886 634 AH 1886 642 AH 1887 450 AH 1887 486 AH 1887 536 AH 1887 570 AH 1887 601 AH 1887 616 AH 1887 622 AH 1887 724 AH 1888 189 AH 1888 306 AH 1888 313 AH 1888 359 AH 1888 394 AH 1888 447 -A^" 462 AH 166 GENERAL CORPORATION LAW Laws of Chapter Section 1888 513 All 1888... 514 All 1888 549 AH 1888 560 AH 1889 57 All 1889 76 All 1889 78 All 1889 236 All 1889 242 All 1889 281 AH 1889 332 AH 1889 369 AH 1889 426 AH 1889 519 AH 1889 524 AH 1889 531 AH 1889 532 AH 1889 564 AH 1890 23 AH 1890 98 AH 1890 119 AH 1890 193 AH 1890 292 All 1890 416 AH 1890 421 AH 1890 483 AH 1890 497 AH 1890 505 AH 1890 508 AH 1890 543 AH 1890 » 563 AH 1891 34 Part relatingf to appraisal of property of insolvent corporations 1891 , 38 AH 1891 57 AH 1891 287 AH 1892 2 AH GENERAL CORPORATION LAW 167 Laws of Chapter . Section 1892 19 4 1892 687 All except 37 • 1894 136 All 1894 400, . .. All 1895., 672 All 1896 139- i All 1896 282 All 1896 932 I, part adding,! 57 to L. 1892, Ch. 688 1898. ....... 522 Part relating to receivers of corporations 1898 534 All 1899 201 All 1900 177 All 1900 704 All 1900 733 All 1900 760 All 1901 96 All 1901 214 All 1901 355 All 1901 506 All 1901 538 All 1902 9 All 1902 60 All 1902 285 All 1903 178 All 1904 236 , All 1904 296 All 1904 490 All 1904 705 All 1904- •• 737 All 1904 754 All 1905 256 All 1906 228 All 1906 239 All 1906 349 All 1906 531 All 1907 IIS All 168 GENERAL CORPORATION LAW Laws of Chapter Section 1908 457 AH Code Civil Procedure 432, subd. 2, from words "by a writing " to " an authentication;" 716, pt. relating to corporations ; 1781-1808; 1809, pt. re- lating to corporations ; 1810, 1811; 1812, 1813, pt. relating to corpora- tions; 241 1 ; 241 2-2414, pt. relating to corpora- tions; 2415, 2416, 2419- 2431b; 3390-3396, pt. re- lating to corporations STOCK CORPORATION LAW Laws of 1908, Chapter 61, entitled "AN ACT relating to stock corporations, constituting Chapter Fifty-nine of the Consolidated Laws." Article 1. Short title (§1). 2. General provisions {§§ 5-24c). 3. Directors and officers (§§ 25-35). 4. Stock and stockholders (§§ 50-70). 5. Laws repealed; when to take effect (§§ 80, 81). ARTICLE I Short Title Section 1. Short title. § I. Short title. — This chapter shall be known as the " Stock Corporation Law." Derivation.— L. 1890, Ch. 564, § 1; L. 1893, Ch. 688, § 1. See 308 N. Y. 58. ARTICLE 2 General Provisions Section 5. Application of article. 6. Power to borrow money and mortgage property. 7. Validating corporate mortgages. 8. Power to guarantee bonds of other corporations. 9. Reorganization upon sale of corporate property. 10. Contents of plan or agreement. 11. Sale of property; possession of receiver and suits against him. 13. Municipalities may assent to plan of readjustment. 13. Change of place of business. 14. Combinations prohibited. The original Stock Corporation Law was Chapter 36 of the " Gen- eral Laws," being L. 1890, Ch. 564. It was re-enacted by L. 1892, Ch. 688. [169] 170 STOCK CORPORATION LAW §§ 5, 6 bectionlS. Merger. 16. Voluntary sale of franchise and property. 17. Rights of non-consenting stockholders on voluntary gale of franchise and property. 18. Alterations or extension of business. , 19. Issuance of shares of stock without nominal or par value.* 20. Commencement of business; authorized debts.* 21. Taxation.* 22. Increase or reduction of shares or stated capital.* 23. Amount of capital stock and of shares within meaning of other laws.* 24. Amendment of certificate of incorporation, t 24-a. Liability upon existing obligations. t 24-b. Not to be construed as dissolution or re-incorporation, t 24-e. Tax upon amendment of certificate of incorporation.! § 5. Application of article. — This article except sec- tions eight, fifteen, sixteen, seventeen and eighteen thereof, shall not apply to moneyed corporations. Derivation.— L. 1890, Oh. 584, § 1, part; L. 1892, Ch. 688, § 1. "A moneyed corporation is a corporation formed under or subject to the banking or the insurance law." See § 3, subd. 4, General Corporation Law. See 146 App. Div. 362. § 6. Power to borrow money and mortgage property. In addition to the powers conferred by the general cor- poration law, every stock corporation shall have the power to borrow money and contract debts, when neces- sary for the transaction of its business, or for the exer- cise of its corporate rights, privileges or franchises, or for any other lawful purpose of its incorporation ; and it may issue and dispose of its obligations for any amount so borrowed, and it may mortgage its property and fran- chises to secure the payment of such obligations, or of any debt contracted for said purposes. Every such mort- gage, except purchase-money mortgages and mortgages authorized by contracts made prior to May first, eigh- * Added by L. 1912, Ch. 351. t Added by L. 1917, Ch. 484. § 6 STOCK COEPOBATION LAW 171 teen hundred and ninety-one, shall be consented to by the holders of not less than two-thirds of the capital stock of the corporation, or, if the corporation is authorized to issue shares without nominal or par value, then by the holders of two-thirds of the total number of shares issued and outstanding, which consent shall be given either in writing or by vote at a special meeting of the stock- holders called for that purpose, upon the same notice as that required for the annual meetings of the corporation ; and a certificate under the seal of the corporation that such consent was given by the stockholders in writing, or that it was given by vote at a meeting as aforesaid, shall be subscribed and acknowledged by the president or a vice-president and by the secretary or an assistant secretary, of the corporation, and shall be filed and recorded in the office of the clerk or register of the county wherein the corporation has its principal place of busi- ness. When authorized by like consent, the directors under such regulations as they may adopt, may confer on the holder of any debt or obligation, whether secured or unsecured, evidenced by bonds of the corporation, the right to convert the principal thereof, within such period as may be fixed by the resolution of the directors con- ferring the right of conversion, into stock of the cor- poration. I. If the corporation has a capital stock all of the shares of which have a nominal or par value and if the capital stock shall not be sufficient to meet the conver- sion when made, the directors shall from time to time, authorize an increase of capital stock sufficient for that purpose by causing to be filed in the office of the secre- tary of state, and a duplicate thereof in the office of the clerk of the county where the principal place of business of the corporation shall be located, a certificate under the seal of the corporation, subscribed and acknowledged by the president and secretary of the corporation setting forth, a. A copy of the resolution of directors authorizing the conversion of such bonds; 172 STOCK CORPORATION- tAW § 6 b. That the holders of not less than two-thirds of the capital stock of the corporation duly consented to the adoption of such resolution ; c. A copy of the resolution of the directors of the cor- poration authorizing the increase of the* capital stock of the corporation necessary for the purpose of such con- version ; d. The amount of capital theretofore authorized, the proportion thereof actually issued and the amount of the increased capital stock. If the corporation be a railroad corporation the cer- tificate shall have indorsed thereon the approval of the public service commission having jurisdiction thereof. When such certificate has been filed, the capital stock of such corporation shall be increased to the amount specified in such certificate. 2. If the corporation is authorized to issue shares with- out nominal or par value, and the number of shares which it is authorized to issue shall not be sufficient to meet the conversion when made, the directors shall, from time to time, authorize an increase of the number of shares suificient for that purpose by causing to be filed in the office of the secretary of state, and a duplicate thereof in the office of the clerk of the county where the principal place of business of the corporation shall be located, a certificate under the seal of the corpora- tion, subscribed and acknowledged by the president and secretary of the corporation, setting forth, a. A copy of the resolution of the directors authorizing the conversion of the bonds; b. That the holders of not less than two-thirds of the total number «f shares issued and outstanding duly con- sented to the adoption of such resolution; c. A copy of the resolution of the directors authorizing the increase of the number of shares, and, if necessary, the amount of the stated capital, requisite for the con- version ; d. The number of shares theretofore authorized and § 7 STOCK CORPORATION LAW 173 the number actually issued, the total number of shares which the corporation shall thenceforth be authorized to issue and the amount of capital with which it will thenceforth carry on business, which amount shall bear the same relation to the total number of authorized shares as is required by subdivision two of section nine- teen of the stock corporation law. When such certificate has been filed, the number of shares, or stated capital, or both, of such corporation, shall be increased as specified in such certificate. Amended by L. 1920, Ch. 607. Former § 2, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 2; L. 1892, Ch. 337, § 1; L. 1892, Ch. 688, § 2; L. 1901, Ch. 354, § 1; L. 1905, Ch. 745, § 1. Compare L. 1864, Ch. 517, § 2; L. 1867, Ch. 480, § 1; L. 1869, Oh. 706, § 1; L. 1871, Ch. 481, § 2; L. 1875, Ch. 88, § 1; L. 1875, Ch. 611, i 13; L. 1878, Ch. 163, §1; L. 1878, Ch. 203, § 39; L. 1880, Ch. 182, § 1; L. 1888, Ch. 394. See 197 N. Y. 408; 163 N. Y. 423; 159 N. Y. 137; 122 N. Y. 165; 99 N. Y. 547; 85 N. Y. 453; 80 N. Y. 345; 140 App. Div. 497; 129 App. Div. 140; 80 Misc. 651; 72 Misc. 525. A stock corporation, other than a banking or insurance corpora- tion, may mortgage its property in any amount. For forms of Consent and Certificate of Vote or Consent to Mort- gage, see Forms Nos. 17 and 18. § 7. Validating corporate mortgages. — Whenever any mortgage affecting property or franchises within this state heretofore or hereafter executed by authority of the board of directors in behalf of any stock corporation, domestic or foreign, of any description, recites or repre- sents in substance or effect that the execution of such mortgage has been duly consented to, or authorized by stockholders, such recital or representation in any such mortgage, after public record thereof within this state shall be presumptive evidence that the execution of such mortgage has been duly and sufficiently consented to, and authorized by stockholders as required by any pro- vision of law. After any such mortgage heretofore or hereafter shall have been publicly recorded for more than 174 STOCK CORPORATION LAW § 7 one year in one or more of the counties of this state con- taining the mortgaged premises or any part thereof, and the corporation shall have received value for bonds ac- tually issued under and secured by such mortgage, and interest shall have been paid on any of such bonds ac- cording to the terms thereof, such recital or representa- tion of such mortgage so recorded shall be conclusive evidence that the execution of such mortgage has been duly and sufficiently consented to, and authorized by stockholders as required by any provision of law, and its validity shall not be impaired by reason of any defect or insufficiency of consent or authority of stockholders or in filing or recording such consent or authority, and such mortgage shall be valid and binding upon the cor- poration, and those claiming under it, as security for all valid bonds issued or to be issued thereunder, unless such mortgage shall be adjudged invalid in an action begun as hereinafter, in this section, provided. Notwithstand- ing the foregoing provisions of this section, the invalidity of any such mortgage heretofore recorded because of insufficiency of consent by stockholders may be ad- judged in any action for such purpose begun before the first day of April, nineteen hundred and two, and the invalidity of any such mortgage hereafter recorded, be- cause of insufficiency of consent by stockholders, may be adjudged in any action for such purpose begun, within one year after the earliest record of such mortgage in any county in this state, provided in either case that such action shall have been so begun by or in behalf of the corporation by direction of the board of directors acting in their own discretion, or upon the written request of the holders o^ not less than one-third of the capital stock of the corporation; and in any such action so begun by or in behalf of the corporation, the recitals or representa- tions of the mortgage shall be presumptive evidence only as first above provided. Whenever hereafter, in compliance with any law of this state, the officers of any corporation shall have made and filed and recorded a § 8 STOCK CORPOEATION LAW 175 certificate that the execution of a mortgage hereafter made by the corporation has been duly consented to by stockholders, such certificate shall be conclusive evidence as to the truth thereof, in favor of any and all persons who in good faith shall receive or purchase, for value, any bond or obligation purporting to be secured by such mortgage, at any time when said certificate shall remain of record and uncanceled. Nothing in this section con- tained shall affect any right or any remedy in respect of any such right of any creditor accrued before this enact- ment nor shall it dispense with the necessity of obtain- ing the consent of the public service commission having jurisdiction thereof to any mortgage by a railroad cor- poration. Former § 8, Stock Corporation Law. Derivation.— L. 1901, Ch. 354, § 3. This section by its terms applies to domestic and foreign cor- porations. § 8. Power to guarantee bonds of other corporations. — Any stock corporation may, in pursuance of a unanimous vote of its stockholders voting at a special meeting called - for that purpose by notice in writing signed by a majority of the directors of such corporation stating the time and place and object of the meeting and served upon each stockholder appearing as such upon the books of the cor- poration, personally or by mail at his last-known post- office address at least sixty days prior to such meeting, guarantee the bonds of any other domestic corporation engaged in the same general line of business; and any stock corporation owning the entire capital stock of any other domestic stock corporation engaged in the same general line of business may in pursuance of a two-thirds vote of its stockholders voting at a special meeting called for that purpose by notice in writing signed by a majority of the directors of such corporation, stating the time and place and object of the meeting and served upon each stockholder appearing as such upon the books of the corporation personally, or by mail, at his last-known 176 STOCK COBPOKATION LAW § 9 post-office address, at least sixty days prior to such meet- ing, guarantee the bonds of such other corporation. Part of former § 40, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 40; L. 1892, Ch. 688, § 40; L. 1902, Ch. 601, § 1. » Compare L. 1855, Ch. 6J, § 7; L. 1848, Ch. 37, § 8; L. 1848, Ch. 40, L. 1848, Ch. 259; § 13; L. 1850, Ch. 140, § 8; L. 1853, Ch. 117, L. 1853, Ch. 135, § 10; L. 1854, Ch. 232, § 8; L. 1857, Ch. 546. L. 1867, Ch. 974, § 8; L. 1872, Ch. 146, § 1; L. 1874, Ch. 143, L. 1878, Ch. 203, § 9; L. 1888, Ch. 462, § 5. See 148 N. Y. 441, 652; 143 N. Y. 292; 137 N. Y. 231; 139 N. Y. 146; 150 N. Y. 410; 159 N. Y. 287; 37 App. Div. 618; 45 App. Div. 231; 56 Misc. 49; 32 Misc. 1. § 9. Reorganization upon sale of corporate property and franchises. — When the property and franchises of any domestic stock corporation shall be sold by virtue of a mortgage or deed of trust, duly executed by it, or pur- suant to the judgment or decree of a court of competent jurisdiction, or by virtue of any execution issued thereon, and the purchaser, his assignee or grantee shall have acquired title to the same in the manner prescribed by law, he may associate with him any number of persons, not less than the number required by law for an incor- poration for similar purposes at least two-thirds of whom shall be citizens of the United States and one shall be a resident of this state, and they may become a corporation and take and possess the property and fran- chises thus sold, and which were at the time of the sale possessed by the corporation whose property shall have been so sold, upon making and acknowledging and filing in the offices where certificates of incorporation are re- quired by law to be filed, a certificate in which they shall describe by nime and reference to the law under which it was organized, the corporation whose property and franchises they have acquired, and the court by whose authority the sale had been made, with the date of the judgment or decree authorizing or directing the same, and a brief description of the property sold, and also the following particulars: § 10 STOCK COBPORATION LAW 177 1. The name of the new corporation intended to be formed by the filing of such certificate; and the place where its principal office is to be located. 2. The maximum amount of its capital stock and the number of shares into which it is to be divided, specify- ing the classes thereof, whether common or preferred, and the amount of and rights pertaining to each class. 3. The number of directors, not less nor more than the number required by law for the old corporation, who shall manage the affairs of the new corporation, and the names and post-office addresses of the directors for the first year. They may insert in such certificate any pro- visions relating to the new corporation, or its manage- ment, contained in any plan or agreement which may have been entered into as provided in section ten of this chapter. Such corporation shall be vested with, and be entitled to exercise and enjoy, all the rights, privileges and franchises, which at the time of such sale belonged to, or were vested in the corporation last owning the property sold, or its receiver, and shall be subject to all the provisions, duties and liabilities imposed by law on that corporation. Any proceedings heretofore taken in substantial compliance with this section as hereby amended and any and all incorporations based thereon are hereby ratified and confirmed. Former § 3, Stock Corporation Law. Derivation.— L. 1«90, Ch. 564, § 3; L. 1893, Ch. 688, § 3; L. 1901, Ch. 354, § 1; L. 1902, Ch. 80, § 1; L. 1904, Ch. 706, § 1. Compare L. 1873, Ch. 460; L. 1874, Ch. 430, §§ 1, 2; L. 1878, Ch. 203, § 5. Upon such reorganization a tax of one-twentieth of one per cent, must be paid. See 110 N. Y. 443 ; 13 App. Div. 50 ; 47 Hun, 467. See also 203 N. Y. 305; 164 N. Y. 41; 158 App. Div. 252; 145 App. Div. 325; 52 App. Div. 195. § 10. Contents of plan or agreement. — At or previous to the sale the purchasers thereat, or the persons for whom the purchase is to be made, may enter into a plan or agreement, for or in anticipation of the readjustment 12 178 STOCK COEPOBATION LAW § 10 of the respective interests therein of any creditors, mort- gagees, stockholders, or any of them, of the corporation owning such property and franchises at the time of the sale, and of holders of claims for materials, supplies and equipment furnished, and for injuries and damages sus- tained, in and about the operation, maintenance or con- struction of any or all the property formerly owned or leased to said corporation, and for the representation of such interests in the bonds or stock of the new corpora- tion to be formed, and may therein regulate voting by the holders of the preferred and common stock at any meeting of the stockholders, and may provide for, and regulate voting by the holders and owners of any or all of the bonds of the corporation, foreclosed, or of the bonds issued or to be issued by the new corporation ; and such right of voting by bondholders shall be exercised in such manner, for such period, and upon such conditions, as shall be therein described. Such plan or agreement must not be inconsistent with the laws of the state and shall be binding upon the corporation, until changed as therein provided, or as otherwise provided by law. The new corporation when duly organized, pursuant to such plan or agreement and to the provisions of law, may issue its bonds and stock in conformity with the provi- sions of such plan or agreement, and may at any time within six months after its organization, compromise, settle or assume the payment of any debt, claim or liability of the former corporation or any claims for ma- terials, supplies and equipment furnished, or any claims for injuries and damages sustained, in and about the operation, maintenance or construction of any or all the property forqjerly owned or leased to said corporation, upon such terms as may be lawfully approved by a majority of the agents or trustees intrusted with the carrying out of the plan or agreement of reorganization, and may establish preferences in favor of any portion of its capital stock and may divide its stock into classes; but the capital stock of the new corporation shall not §§ 11, 12 STOCK COEPOEATIOIT LAW 179 exceed in the aggregate the maximum amount of stock mentioned in the certificate of incorporation. Amended by L. 1911, Ch. 858. Former § 4, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 4; L. 1892, Ch. 688, § 4; L. 1901, Ch. 354, § 1. Compare L. 1873, Ch. 469; L. 1874, Ch. 430, §§ 1, 3. See 203 N. Y. 306; 145 App. Div. 326. § II. Sale of property; possession of receiver and suits against him. — The supreme court may direct a sale of the whole of the property, rights and franchises covered by the mortgage or mortgages, or deeds of trust foreclosed at any one time and place to be named in the judgment or order, either in case of the non-payment of interest only, or of both the principal and interest due and unpaid and secured by any such mortgage or mort- gages or deeds of trust. Neither the sale nor the forma- tion of the new corporation shall interfere with the au- thority or possession of any receiver of such property and franchises, but he shall remain liable to be removed or discharged at such time as the court may deem proper. No suit or proceeding shall be commenced against such receiver unless founded on wilful misconduct or fraud in his trust after the expiration of sixty days from the time of his discharge; but after the expiration of sixty days the new corporation shall be liable in any action that may be commenced against it, and founded on any act or omission of such receiver for which he may not be sued, and to the same extent as the receiver, but for this section would be or remain liable, or to the same extent that the new corporation would be had it done or omitted the acts complained of. Former | 5, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 5; L. 1892, Ch. 688, § 5. Compare L. 1873, Ch. 469; L. 1874, Ch. 430, §§ 1, 2; L. 1876, Ch. 446, §§ 1, 2. § 12. Municipalities may assent to plan of readjust- ment. — The commissioners, corporate authorities or 180 STOCK COBPOEATION LAW § 13 proper officers of any city, town or village, who may hold stock in any corporation, the property and franchises whereof shall be liable to be sold, may assent to any plan or agreement of reorganization which lawfully provides for the formation of a new corporation,* and the issue of stock therein to the proper authorities or officers of such cities, towns or villages in exchange for the stock of the old or former corporation by them respectively held. And such commissioners, corporate authorities or other proper officers may assign, transfer or surrender the stock so held by them in the manner required by such plan, and accept in lieu thereof the stock issued by such new corporation in conformity therewith. Former § 6, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 6; L. 1892, Ch. 688, § 6; L. 1901, Ch. 354, § i. Compare L. 1874, Ch. 430, § 4. § 13. Change of place of business. — Any stock corpo- ration now existing or hereafter organized under the laws of this state, except moneyed corporations, may at any time change its principal office and place of business from the city, town or county named in its certificate of incorporation, or to which it may have been changed under the provisions of this section, to any other city, town or county in this state, in which it may desire to actually transact and carry on its regular business from day to day, provided that such change has been author- ized, either by unanimous consent of the stockholders expressed in writing and duly acknowledged and filed in the office of the secretary of state, or by a vote of the stockholders of said corporation at a special meeting of the stockholdef s called for that purpose, or such change has been effected by an act of legislature creating a separate and distinct county wholly within the limits and boundaries of a then existing county or counties. When such change shall be authorized by the stock- holders or effected by the creation of, a new county wholly within the limits and boundaries of thd'then exist- § 14 STOCK CORPORATION LAW 181 ing county or counties as herein provided, the president and secretary and a majority of the directors of such corporation shall sign a certificate stating the name of said corporation, the city, town and county where its principal office and place of business was originally located, and to which it may have been subsequently changed and the city, town and county to which it is desired to change its said principal office and place of business, and that it is the purpose of said corporation to actually transact and carry on its regular business from day to day at such place, and that such change has been authorized as herein provided, and the names of the directors of said corporation and their respective places of residence, which certificate shall be verified by the oaths of all the persons signing the same, and when so signed and verified, shall be filed in the office of the secretary of state and a duplicate thereof in the office of the clerk of the county from which said principal office and place of business is about to be removed or changed, and another in the office of the clerk of the county to which said removal or change is to be made, and there- upon the principal office and place of business of such corporation shall be changed as stated in said certificate. Amended by L. 1915, Qi. 117. Former § 59, Stock Corporation Law. Derivation.— L. 1896, Oh. 929, § 1; L. 1905, Oh. 489, § 1. Compare L. 1864, Ch. 517, § 1. For forms of Unanimous Consent and Certificate of Vote or Con- sent to Change of Place of Business, see Forms Nos. 19 and 20. § 14. Combinations prohibited. — No domestic stock corporation and no foreign corporation doing business in this state shall combine with any other corporation or person for the creation of a monopoly or the unlawful restraint of trade or for the prevention of competition in any necessary of life. Former § 7, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 7; L. 1892, Ch. 688, § 7; L. 1897, Ch. 384, § 1. 182 STOCK CORPOKATION LAW §§ 15, 16 Compare L. 1854, Ch. 232, § 22. See 148 N. Y. 58; 146 N. Y. 407; 145 N. Y. 267; 143 N. Y. 53", 183 N. Y. 562; 121 N. Y. 582; 125 App. Div. 804; 124 App. Div. 401; 37 App. Div. «18; 32 Misc. 1. § 15. Merger. — Any domestic stock corporation and any foreign stock corporation authorized to do business in this state lawfully owning all the stock of any other stock corporation organized for, or engaged in business similar or incidental to that of the possessor corpora- tion may file in the office of the secretary of state, under its common seal, a certifcate of such ownership, and of the resolution of its board of directors to merge such other corporation, and thereupon it shall acquire and be- come, and be possessed of all the estate, property, rights, privileges and franchises of such other corporation, and they shall vest in and be held and enjoyed by it as fully and entirely and without change or diminution as the same were before held and enjoyed by such other cor- poration, and be managed and controlled by the board of directors of such possessor corporation, and in its name, but without prejudice to any liabilities of such other cor- poration or the rights of any creditors thereof. Any bridge corporation may be merged under this section with any railroad corporation which shall have acquired the right by contract to run its cars over the bridge of such bridge corporation. Former § 58, Stock Corporation Law. Derivation.— L. 1896, Ch. 932, § 1; L. 1900, Ch. 476, § 1; L. 1902, Cli. 98, § 1. For form of Certificate of Merger, see Form No. 21. § 16. Voluntary sale of franchise and property. — A stock corporation, except a railroad corporation and ex- cept as otherwise provided by law, with the consent of two-thirds of its stock, may sell and convey its property, rights, privileges and franchises, or any interest therein or any part thereof to a domestic corporation, engaged in a business of the same general character, or which § 17 STOCK CORPORATION LAW 183 might be included in the certificate of incorporation of a corporation organizing under any general law of this state for a business of the same general character, and a domestic corporation the principal business of which is carried on in, and the general tangible property of which is located within a foreign state, may with the consent of the holders of*two-thirds of its capital stock, sell and convey its property situate without the state of New York, not including its franchises, to a foreign corpora- tion, and such sale and conveyance shall, in case of a sale to a domestic corporation, vest the rights, property and franchises thereby transferred, and in case of a sale to a foreign corporation the property sold, in the cor- poration to which they are conveyed for the term of its corporate existence, subject to the provisions and restric- tions applicable to the corporation conveying them. Before such sale or conveyance shall be made such consent shall be obtained at a meeting of the stock- holders called upon like notice as that required for an annual meeting. Amended by L. 1920, Ch. 396. Part of former | 33, Stock Corporation Law. Derivation.— L. 1893, Ch. 638, § 2; L. 1901, Ch. 130, § 1. See 200 N. Y. 177; 56 Misc. 278. § 17. Rights of non-consenting stockholders on volun- tary sale of franchise and property. — If any stockholder not voting in favor of such proposed sale or conveyance shall at such meeting, or within twenty days thereafter, object to such sale, and demand payment for his stock, he may, within sixty days after such meeting, apply to the supreme court at any special term thereof held in the district in which the principal place of business of such corporation is situated, upon eight days* notice to the corporation, for the appointment of three persons to appraise the value of such stock, and the court shall appoint three such appraisers, and designate the time and place of their proceedings as shall be deemed proper, and also direct the manner in which payment for such stock 184 STOCK COEPOEATIOK LAW § 18 shall be made to such stockholders. The court may fill any vacancy in the board of appraisers occurring by refusal or neglect to serve or otherwise. The appraisers shall meet at the time and place designated, and they or any two of them, after being duly swoVn honestly and faithfully to discharge their duties, shall estimate and certify the value of such stock at the time of such dis- sent, and deliver one copy to such corporation, and another to such stockholder, if demanded; the charges and expenses of the appraisers shall be paid by the cor- poration. When the corporation shall have paid the amount of such appraisal, as directed by the court, such stockholders shall cease to have any interest in such stock and in the corporate property of such corporation and such stock may be held or disposed of by such corporation. Part of former § 33, Stock CJorporation Law. Derivation.— L. 1893, Ch. 638, § 1; L. 1901, Oh. 130, § 1. See 192 N. Y. 570; 189 N. Y. 560. § 1 8. Alterations or extension of business. — Any stock corporation heretofore or hereafter organized under any general or special law of this state may alter its certifi- cate of incorporation so as to include therein any pur- poses, powers or provisions which at the time of such alteration may apply to corporations engaged in a busi- ness of the same general character, or which might be included in the certificate of incorporation of a corpora- tion organized under any general law of this state for a business of the same general character, by filing in the manner provided for the original certificate of incorpora- tion an amended certificate, executed by the president and secretary, stating the alteration proposed, and that the same has been duly authorized by a vote of a major- ity of the directors and also by vote of stockholders representing at least three-fifths of the capital stock, at a meeting of the stockholders called for the purpose in the manner provided in section sixty-three of this chap- § 19 STOCK CORPORATION LAW 185 ter, and a copy of the proceedings of such meeting, veri- fied by the affidavit of one of the directors present thereat, shall be filed with such amended certificate. Former § 32, Stock Corporation Law Derivation.— L. 1892, Ch. 688, § 32; L. 1901, Oh. 354, § 1; L. 1905, Ch. 751, § 1. ' Compare L. 1888, Ch. 513, § 1. See 138 N. Y. 151; 137 App. Div. 676. § ig. Issuance of shares of stock without nominal or par value. — Upon the formation of any stock cor- poration, other than a moneyed corporation, provision may be made for the issuance of the shares of stock of such corporation of any one or more classes, without any nominal or par value, by stating in the certificate of incorporation : (i) The number of shares with a nominal or par value and the number of shares without a nominal or par value that may be issued by the corporation and the classes if any into which such shares are to be divided, together with a statement of the distinguishing prefer- ences, rights, privileges and restrictions of each class; (2) The nominal or par value (which shall be the same for all shares of the same class) of shares other than shares which it is stated are to have no nominal or par value; (3) Either a. The amount of stated capital with which the cor- poration will begin business which amount shall not be less than five hundred dollars; and that the corporation will carry on business with a stated capital which shall not be less than the aggregate amount of the preference to which all issued and outstanding stock having a preference as to principal is entitled, and in addition thereto an amount therein stated in respect to every share of stock issued and outstanding other than stock having a preference as to principal, which amount shall not be less than five dollars for each share and such additional amount as from time to time may by resolu- 186 STOCK CORPOEATION LAW § 19 tion of the board of directors of the corporation be trans- ferred thereto; or b. The amount of stated capital with which the cor- poration will begin business which in no event shall be less than five hundred dollars; and-that the corporation will carry on business with a stated capital consisting of the aggregate of the amounts received by it as con- sideration for the issuance of its shares with no nominal or par value, the aggregate par value of all issued and outstanding shares, if any, having a nominal or par value, and such additional amounts as from tirrie to time may by resolution of the board of directors of the cor- poration be transferred thereto. Such statements in the "certificate shall be in lieu of any statements prescribed by the law under which the corporation shall have been formed as to the amount or the maximum amount of its capital stock or the number of shares into which the same shall be divided, or of the amount or the par value of such shares. Subject to the preferences, rights, limitations, privi- leges and restrictions lawfully granted or imposed with respect to any stock or class thereof, each share of such stock with no nominal or par value shall be equal to every other share of such stock. Every certificate for such shares without nominal or par value shall have plainly written or printed upon its face the number of such shares which it represents, and no such certificate shall express any nominal or par value of such shares or express any rate of dividend in terms of percentage of any nominal or par value. The certificates for pre- ferred shares shall state the amount, if any, which the holders of each of such preferred shares shall be entitled to receive on account of principal from the assets of the corporation in preference to the holders of other shares, and shall state briefly any other rights or preferences given to the holders of such shares. Subject to laws creating and defining the duties of the public service commission and the transit commis- sion, such corporation may issue and may sell its author- § 20 STOCK CORPORATION LAW 187 ized shares without nominal or par value from time to time, for such consideration as may be prescribed in the certificate of incorporation, or for such consideration as shall be the fair market value of such shares, and, in the absence of fraud in the transaction, the judgment of the board of directors as to such value shall be conclusive; or in the absence of fraud in the transaction for such consideration as, from time to time, may be fixed by the board of directors pursuant to authority conferred in such certificate of incorporation; or for such con- sideration as shall be consented to or approved by the holders of a majority of shares then outstanding at any meeting called in the manner prescribed by the by-laws, provided the call for such meeting shall contain notice of such purpose. Any and all shares issued as permitted by this section shall be deemed fully paid and non-assess- able and the holder of such shares shall not be liable to the corporation or to its creditors in respect thereof. Added by L. 1912, Oh. 351; amended by L. 1917, Ch. 500; L. 1930, Ch. 608; L. 1921, Ch. 694. For form of Certificate of Inoorporation, see Form No. 1. § 20. Commencement of business ; authorized debts. — No corporation authorized to issue shares with no nominal or par value shall begin business until the amount of capital with which it will begin business as stated in the certificate of incorporation shall have been fully paid in, nor shall any such corporation, until the capital with which it will carry on business as stated in the certificate of incorporation shall have been fully paid in, incur any debts in excess of the amount of stated capital paid in at the time such debts are contracted. In case of an increase of the stated capital with which the corporation will carry on business, such increase of stated capital shall be deemed paid in to the extent of the amount of the assets which the corporation has in money and property in excess of the former stated capital. The directors of the corporation assenting to the creation of any debt in violation of this section shall be liable 188 STOCK COEPOBATION LAW § 21 jointly and severally for the debts of such corporation; but no action shall be brought under the foregoing pro- vision of this section unless within one year after the debt shall have been incurred the creditor shall have served upon the director written noticfe of intention to hold him personally liable for such debt. Any director who, because of any such liability under this section, shall pay any debt of the corporation, shall be subro- gated to all rights of the creditor in respect thereof against the corporation and its property and also shall be entitled to contribution from all other directors of the corporation similarly liable for the same debt and the personal representative of any such director who shall have died before making such contribution. No such corporation shall declare or pay any dividend which shall reduce the amount of its stated capital. In case any such dividend shall be declared, the directors in whose administration the same shall have been declared, except those who may have caused their dis- sent therefrom to be entered upon the minutes of such meetings of directors at the time or who were not present when such action was taken, shall be liable jointly and severally to such corporation and to the creditors thereof to the full amount of any loss sus- tained by such corporation or by its creditors respectively by reason of such dividend. Added by L. 1912, Ch. 351; amended by L. 1930, Ch. 606; L. 1921, Ch. 694. § 21. Taxation. — The tax payable under section two hundred and seventy of the tax law in respect of any sale or agreentent of sale or any memorandum of sale or delivery or transfers of shares or certificates of any share without designated monetary value hereafter issued by any such corporation issuing such shares shall be at the rate of two cents for each and every share of such stock so transferred. The franchise tax upon any corporation issuing such shares of stock payable under § 22 STOCK CORPORATION LAW 189 section one hundred and eighty-two of the tax law shall be determined by taking as a base such portion of the net assets of the corporation as its gross assets employed in any business within this state bear to its entire gross assets wherever employed in business, and the rate of such franchise tax shall be fixed in the manner pro- vided in said section one hundred and eighty-two of the tax law. For this purpose the rate of dividends shall be computed by dividing the total amount of dividends which has been paid during the year by the amount of the net assets of the corporation upon the first day of such year. Added by L. 1912, Ch. 351; amended by L. 1917, Ch. 501; L. 1921, Oh. 694 and Ch. 705. § 22. Increase or reduction of shares or stated capital. — Any corporation which is authorized to issue shares with no nominal or par value may amend its certificate of incorporation so as to increase or to reduce the number of shares which it may issue or so as to increase or to reduce the amount of its stated capital, with which it will carry on business as stated in its certificate of in- corporation by filing, in the manner provided for the original certificate of incorporation, a certificate of amendment under the seal of the corporation executed by its president or a vice-president and by its secretary or its treasurer, stating the amendment proposed and that the same has been duly authorized by a vote of a majority of the directors and also by the vote of the holders of at least a majority of the outstanding shares issued by the corporation, at a meeting of the stock- holders called for the purpose in the manner provided in section sixty-three hereof, and by filing with such certificate of amendment a copy of the proceedings of such meeting, made, signed, verified and acknowledged by the president or a vice-president and by the secretary or the treasurer of the corporation; but an amendment cannot be made under this section unless as so amended 190 STOCK CORPOBATION LAW § 23 the certificate of incorporation could lawfully have been filed under section nineteen of this chapter. In case of a reduction of the amount of stated capital with which a corporation will carry on business as stated in its certificate of incorporation, a certificate setting forth the whole amount of the ascertained debts and liabilities of the corporation shall be made, signed, verified and acknowledged by the president or a vice-president and by the secretary or the treasurer of the corporation and shall be filed with the certificate of amendment; and such certificate of amendment shall have endorsed thereon the approval of the comptroller to the effect that as so stated the reduced amount of capital is sufficient for the proper purposes of the corporation and is in excess of its ascertained debts and liabilities. Added by L. 1912, Ch. 351; amended by L. 1921, Ch. 694. § 23. Amount of capital stock and of shares within meaning of other laws. — For the purpose of any rule of law or of any statutory provision (other than as herein above specifically provided) relating to the amount of the capital stock of a corporation or the amount or par value of its shares, the stated capital of any corporation authorized to issue shares with no nominal or par value shall be deemed to be the capital stock of such corpora- tion; and the amount or the par value of each share of stock having a preference as to principal shall be deemed to be the amount of such preference so specified in such certificate or such amended certificate; and the amount or the par value of each other share with no nominal or par value shall be deemed to be an aliquot part of the stated capita? of the corporation which is in excess of (a) the aggregate par value of the issued and outstand- ing stock, if any, having par value, and, in addition thereto, a sum equivalent to the amount, if any, above such par value, which such stock shall be entitled under the conditions of its- issue, to receive, in any distribution of capital and (b) the total amount of preference as to §. 24 STOCK CORPORATION LAW 191 principal of shares with no nominal or par value having such preference. Added by L. 1912, Ch. 351; amended by L. 1931, Ch. 694. § 24. Amendment of certificate of incorporation. — Any stock corporation, other than a moneyed corpora- tion, heretofore or hereafter organized under any general or special law of this state, having shares with nominal or par value may, by filing and recording, pursuant to section five of the general corporation law, an amend- ment of its certificate of incorporation as herein speci- fied, change such shares with nominal or par value or any class thereof including authorized but unissued shares into shares with no nominal or par value. Such certificate shall be entitled and endorsed " Certificate of amendment pursuant to section twenty-four of the stock corporation law " (the blank space being filled in with the name of the corporation) and shall state : * The name of the corporation and if it has been changed, the name under which it was originally organ- ized. 2. The law under which the corporation was organ- ized, by year of passage, chapter number, and article if any. 3. The date on which, and the public office or offices in which the certificate of incorporation was filed. 4. The amount of capital stock authorized by its cer- tificate of incorporation and if the amount has been changed, the date of filing of each certificate of consent authorizing a change, and the amount to which the capital stock was increased or reduced by such certifi- cate of consent or in the case of a corporation having stock with no nominal or par value the number of shares authorized by, and the amount of capital stated in, its certificate of incorporation or reorganization or any cer- tificate amendatory thereof. *So in original (1. omitted). 192 STOCK COEPOEATION LAW § 24 5. The amount of each payment of taxes for the privi- lege of organizing or reorganizing or increasing the capital stock or the number of shares of the corporation. 6. The number of shares into which the capital stock has been divided, and, if classified, the number of the shares included in each class, together with the prefer- ence or distinctive features of the shares of each class and in the case of shares having a par value, the par value thereof. 7. The number of shares of each class issued and out- standing. 8. The number of shares with no nominal or par value that may henceforth be issued by the corporation, which may be either less than, or equal to or in excess of the number of shares into which the capital stock was pre- viously divided, and if the same are to be classified the number of shares to be included in each class together with a statement of the distinguishing preferences, rights, privileges and restrictions of each class. 9. The terms upon which the new shares without nominal or par value shall be issued in place of the out- standing shares of stock. 10. The stated capital with which the corporation will carry on business, which shall be in all respects as re- quired by subdivision three of section nineteen of this chapter. 11. It may also prescribe the consideration for which the corporation may issue and sell its authorized shares, with no nominal or par value which are not issued in place of the outstanding shares of stock, or it may authorize the board of directors to issue and sell its authorized shares from time to time, for such considera- tion, as shall be the fair market value of said shares, and, in the absence of fraud in the transaction the judg- ment of the board of directors as to such value shall be conclusive ; or it may authorize the board of directors to issue and sell said shares for such consideration as, from time to time, may be fixed by said board. Such certificate shall be either: § 24 STOCK CORPORATION LAW 193 (a) Signed and acknowledged by every stockholder of record of the corporation, or his duly authorized proxy, and shall have annexed an afifidavit of the cus- todian of the stock book to the effect that the persons who have executed the certificate, in person or by proxy, consitute the holders of record of all of the shares of stock of the corporation, irrespective of class, issued and outstanding, or; (b) Signed and acknowledged by the president or a vice-president and the secretary or treasurer of the cor- poration, who shall make and annex an affidavit stating that they have been authorized and directed to execute and file the certificate by the votes, cast in person or by proxy, of the holders of record of a majority of shares then outstanding, irrespective of any provision of the certificate of incorporation purporting to deny voting powers to the holders of any class of stock, at a meeting called and held upon written notice mailed to each stock- holder at least twenty days before the date set for the meeting and published once a week for at least two suc- cessive weeks in a newspaper published and circulating in the county wherein the principal office of the corpora- tion is located; and that such notice did expressly state the purpose of the meeting to be that of amending the certificate of incorporation of the corporation pursuant to section twenty-four of the stock corporation law, so as to permit the issuance of shares without par value, and did state the terms upon which the outstanding shares of stock were to be exchanged for the new shares. If any stockholder not voting in favor of the proposed anlendment of the certificate of incorporation shall, at such meeting, or within twenty days thereafter, object thereto and demand payment for his stock, such stock- holder or the corporation may, at any time within sixty days after such meeting take proceedings for the appraisal of the stock as provided under section eight of the business corporations law on the consolidation of corporations. Upon the payment by the corporation 13 194 STOCK coRPOBATioN LAW §§ 24-a, 24-b of the amount of such appraisal and the charges and expenses of the appraisers, such stockholders shall cease to have any interest in such stoc^ and the corporate property of the corporation, and such stock may be held or disposed of by the corporation. The corporation shall be liable for and pay to any such objecting stock- holder the amount of any award as finally sustained. Added by L. 1917, Ch. 484; amended by L. 1921, Cli. 694. § 24-a. Liability upon existing obligations. — The liability of the corporation, its officers, directors and stockholders for corporate debts contracted or obliga- tions incurred prior to the filing of the certificate of amendment pursuant to section twenty-four of this chapter shall be unaffected thereby, but for the purpose of enforcing and recovering upon such claims creditors shall have the same right of recourse against the cor- poration, or against its officers, directors and stockhold- ers individually that they would have had if the certifi- cate of incorporation had not been amended hereunder, and there shall be especially reserved and saved to such creditors all of the rights and benefits conferred by sec- tions fifty-six to fifty-nine, inclusive, of this chapter, subject to the conditions, limitations and restrictions im- posed by those sections. Except as provided by this section the new shares issued by the corporation shall be deemed fully paid and nonassessable and the holder of such shares' shall not be liable to the corporation or to its creditors in respect thereof. Added by L. 1917, Ch. 484; amended and renumbered by L. 1931, Ch. 694, § 9. • Former § 24-a was repealed by L. 1920, Ch. 694, § 7. § 24-b. Not to be construed as dissolution or re-incor- poration. — No proceedings taken under section twenty- four of this chapter shall be deemed to work a dissolu- tion, or to create a new corporation or to interrupt in § 24-C STOCK COKPOEATION LAW 195 any way the continuity of existence of the corporation affected. Added by L. 1917, Ch. 484; amended and renumbered by L. 1921, Ch. 694, § 10. Former § 24-b was repealed by- L. 1921, Ch. 694, § 8. § 24-C. Tax upon amendment of certificate of incor- poration. — Every corporation which shall obtain author- ity to issue shares with no nominal or par value in exchange for par value shares, in accordance with the provisions of the next preceding sections, shall pay to the state treasurer for such privilege a tax of the same amount, and computed in like manner as upon the organ- ization of a new corporation, authorized to issue shares of the same number and kinds, less one-half of the aggre- gate amount of all sums previously paid for the privi- lege of organizing or of increasing the capital stock, except that, if less than all the classes of outstanding stock shall be converted into shares with no nominal or par value, the credit shall be one-half of the sums pre- viously paid to the state on account of the creation or issue of the stock so converted; provided, however, that every corporation which shall issue shares with no nominal or par value in accordance with the provisions of the preceding sections, shall pay a tax for such privi- lege, which in no case shall be less than twenty-five dollars. Neither the secretary of state nor the county clerk shall file any such certificate of amendment under this article until he is furnished with a receipt for such tax from the state treasurer. The public service commission and transit commission shall have authority and jurisdiction over the issue and sale of shares of stock with no nominal or par value of any public service corporations in the same manner and to the same extent as such commissions now have or hereafter may have with respect to shares of stock with par value and nothing contained in this act shall be con- strued to change or modify the jurisdiction of such com- 196 STOCK COBPORATION LAW § 24-C missions or to exempt or relieve a corporation from any requirement of law as to the amount in dollars of paid in capital in cash or otherwise which it must have at any time. Added by L. 1917, Oh. 484; ameiided by L. 1921, Ch. 694, § 11. § 25 STOCK CORPORATION LAW 197 ARTICLE 3 Directors and Officers Section 35. Directors. 36. Change of number of directors. 37. When acts of directors void. 38. Liability of directors for making unauthorized divi- dends. 39. Liability of directors for loans to stockholders. 30. Officers. 31. Inspectors and their oath, 33. Books to be kept. 33. Stock books of foreign corporations. 34. Annual report to secretary of state. 35. Liability oif officers for false certificates, reports or public notices. § 25. Directors. — The directors of every stock corpo- ration shall be chosen at the time and place fixed by the by-laws of the corporation by a plurality of the votes at such election. Each director shall be a stockholder un- less otherwise provided in the certificate, or in a by-law adopted by a stockholders' meeting. Vacancies in the board of directors shall be filled in the manner prescribed in the by-laws. Notice of the time and place of holding any election of directors shall be either published at least once in each week for two successive weeks im- mediately preceding such election, in a newspaper pub- lished in the county where such election is to be held, or delivered personally or mailed, not less than ten nor more than twenty days before the election, to each per- son who appears on the books of the corporation as a stockholder; if mailed, it shall be directed to a stock- holder at his address as it appears on such books. The by-laws may require such notice to be published and also mailed or delivered as above provided. In the case of a domestic stock life insurance corporation no such election shall be valid unless a copy of such notice shall have been filed in the office of the superintendent of insurance at least ten days before the day of such elec- 198 STOCK COKPOEATION LAW § 25 tion in addition to the publication service thereof, or both, required above. Whenever any of the directors of a domestic stock life insurance corporation shall have resigned and successors shall have been chosen pursuant to the provisions of the by-laws of the corporation, such successors shall not take office nor exercise the duties thereof until ten days after vk^ritten notice of their elec- tion shall have been filed in the office of the superin- tendent of insurance. Policyholders of an insurance corporation shall be eligible to election as directors, whether or not they be stockholders. At least one-fourth in number of the directors of every stock corporation shall be elected annually. Former § 20, Stock Corporation Law. Amended by L. 1918, Ch. 267. Derivation.— L. 1890, Ch. 564, § 20; L. 1893, Ch. 688, § SO; L. 1901, Ch. 354, § 1; L. 1906, Ch. 238, § 1. Compare L. 1811, Ch. 67, § 3; L. 1847, Ch. 210, § 38; L. 1848, Ch. 37, § 3; L. 1848, Ch. 40, § 3; L. 1848, Ch. 259, § 5; L. 1850, Ch. 140, § 5; L. 1852, Ch. 228, § 3; L. 1853, Oh. 117, § 3; L. 1853, Ch. 135, §§ 3, 7; L. 1853, Ch. 395, § 6; L. 1854, Ch. 332, § 3; L. 1854, Ch. 282, § 1; L. 1855, Ch. 435; L. 1857, Ch. 546. § 3; L. 1860, Ch. 269, § 1; L. 1867, Ch. 971, § 5; L. 1867, Ch. 974, § 5; L. 1873, Ch. 710; L. 1875, Ch. 606, § 11; L. 1875, Ch. 611, §§ 10, 26; L. 1877, Ch. 228, § 4; L. 1878, Ch. 203, § 5; L. 1879, Ch. 393, § 1; L. 1888, Oh. 462, § 4. See 204 N. Y. 36; 163 N. Y. 423; 151 App. Div. 239; 132 App. Div. 3; 116 App. Div. 58. The election of directors and the rights of stockholders thereat are regulated by § 33 of the General Corporation Law. Any stock- holder may call a meeting for the election of directors, if the latter fail to call a meeting within one month from the day designated by law or in the by-laws, or if the election result in a failure to elect directors. See § 29, General Corporation Law. For provisions relating to the appointment of inspectors of elec- tion, their compeiftation and oaths (which must be filed in the county clerk's ofHce, together with a, certificate of the result of the vote), see § 31, Stock Corporation Law. For form of Notice of Annual Meeting, see Form No. 22. § 26 STOCK CORPORATION LAW 199 § 26. Change of number of directors. — The number of directors of any stock corporation may be increased or reduced, but not below the minimum number prescribed by law, when the stockholders owning a majority of the stock of the corporation shall so determine, at a meeting to be held on two weeks' notice in writing to each stock- holder of record. Such notice shall be served personally or by mail, directed to each stockholder at his last known post-office address. Proof of the service of such notice shall be filed in the office of the corporation at or before the time of such meeting. The proceedings of such meet- ing shall be entered in the minutes of the corporation and a transcript thereof verified by the president and secre- tary of the meeting shall be filed in the offices where the original certificates of incorporation were filed. Such increase or reduction may also be effected by unani- mous consent without a meeting, in which case there shall be filed in the offices herein specified the unanimous consent of the stockholders in writing, signed by them, or their duly authorized proxies, but no such consent shall be valid unless there is annexed thereto an affi- davit of the custodian of the stock book of such cor- poration stating that the persons who have signed such consent, either in person or by proxy, are the holders of record of the entire capital stock of said corporation issued and outstanding. If a corporation formed under or subject to the banking law, the consent of the super- intendent of banks, and if an insurance corporation, the consent of the superintendent of insurance, shall be first obtained to such increase or reduction of the number of directors. This section shall apply to any stock cor- poration whether organized under a general or special law, and the number of directors may be increased as hereby provided notwithstanding the maximum number of directors now prescribed by law. If the number of directors be increased, the additional directors author- ized by such increase shall be elected by the votes of a majority of the directors in office at the time of the in- 200 STOCK CORPOBATION LAW § 27 crease. If the original or an amended certificate of incorporation of the corporation shall provide that the directors shall be divided into two or more classes, whose terms of office shall respectively expire at different times, the additional directors shall be divided among such classes as nearly as practicable in proportion to the respective numbers of directors ceostituting each class prior to such increase. Amended by L. 1909, Ch. 421, §§ 1 and 2. Former § 81, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 31; L. 1891, Oh. 57; L. 1892, Ch. 688, § 21; L. 1903, Ch. 380, § 1; L. 1904, Ch. 307, § 1; L. 1905, Ch. 750, § 1. Compare L. 1848, Ch. 37; L. 1860, Ch. 269, § 2; L. 1863, Ch. 134, § 1; L. 1867, Ch. 248, § 2; L. 1875, Ch. 4, § 1; L. 1875, Ch. 611, § 10; L. 1878, Ch. 316, § 2; L. 1879, Ch. 395, § 1; L. 1881, Cli. 422; L. 1885, Ch. 171, § 1; L. 1890, Ch. 33. See 205 N. Y. 445; 186 N. Y. 315, rev'g 114 App. Div. 856; 183 N. Y. 578; 160 N. Y. 500; 159 N. Y. 287; 125 N. Y. 25; 148 App. Div. 13; 109 App. Div. 49; 71 Misc. 511. For forms of above Consent and Certificate of Consent or Vote, see Forms Nos. 33 and 24. For form of Affidavit of Custodian of Stock Book, see Form No. 35. § 27. When acts of directors void. — When the direct- ors of any corporation for the first year of its corporate existence s.hall hold over and continue to be directors after the first year, because of their neglect or refusal to adopt the by-laws required to enable the stockholders to hold the annual election for directors, all their acts and proceedings while so holding over, done for and in the name of the corporation, designed to charge upon it any liability or obligation for the services of any such director, or a»y officer, or attorney or counsel appointed by them, and every such liability or obligation shall be held to be fraudulent and void. Former § 32, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 32; L. 1892, Ch. 698, § 88. Compare L. 1885, Ch. 489. See § 28, General Corporation Law. §§ 28, 29 STOCK CORPORATION LAW 201 § 29, General Corporation Law, gives the right to " any member of the corporation " in certain cases to call a meeting for the elec- tion of directors. § 28. Liability of directors for making unauthorized dividends. — The directors of a stock corporation shall not make dividends, except from the surplus profits arising from the business of such corporation, nor divide, withdraw or in any way pay to the stockholders or any of them, any part of the capital of such corporation, or reduce its capital stock, except as authorized by law. In case of any violation of the provisions of this section, the directors under whose administration the same may have happened, except those who may have caused their dissent therefrom to be entered at large upon the minutes of such directors at the time, or were not present when the same happened, shall jointly and severally be liable to such corporation and to the creditors thereof to the full amount of any loss sustained by such corporation or its creditors respectively by reason of such withdrawal, division or reduction. But this section shall not prevent a division and distribution of the assets of any such cor- poration remaining after the payment of all its debts and liabilities upon the dissolution of such corporation or the expiration of its charter; nor shall it prevent a cor- poration from accepting shares of its capital stock in complete or partial settlement of a debt owing to the corporation, which by the board of directors shall be deemed to be bad or doubtful. Former § 23, Stock Corporation Law. Derivation.— L. 1890, Oh. 564, § 23; L. 1892, Oh. 688, § 23; L. 1901, Ch. 354, § 1. Compare R. S., Part I, Ch. 18, Title 4, § 2, 8th Ed., p. 1728; Birdseye's Ed., p. 678; L. 1848, Ch. 40, § 13; L. 1854, Ch. 232, § I4; L. 1857, Ch. 546, | 13; L. 1875, Ch. 611, § 19. See 160 N. Y. 21, 32; 152 App. Div. 127; 142 App. Div. 150; 136 App. Div. 241; 72 Misc. 509. § 29. Liability of directors for loans to stockholders. — No loan of moneys shall be made by any stock cor- 202 STOCK CORPORATION LAW § 30 poration, except a moneyed corporation or by any officer thereof out of its funds to any stockholder therein, nor shall any such corporation or officer discount any note or other evidence of debt, or receive the same in pay- ment of any instalment or any part thereof due or to become due on any stock in such corporation, or receive or discount any note, or other evidence of debt, to enable any stockholder to withdraw any part of the money paid in by him on his stock. In case of the violation of any provision of this section, the officers or directors making such loan, or assenting thereto, or receiving or discount- ing such notes or other evidences of debt, shall, jointly and severally, be personally liable to the extent of such loan and interest, for all the debts of the corporation contracted before the repayment of the sum loaned, and to the full amount of the notes or other evidences of debt so received or discounted, with interest from the time such liability accrued. Former § 25, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 25; L. 1892, Ch. 688, § 25. Compare L. 1848, Ch. 40, § 14; L. 1853, Ch. 117, § 14; L. 1875, Ch. 611, § 20. See 57 N. Y. 133; 62 Hun, 63; 30 Hun, 314. § 30. Officers. — The directors of a stock corporation may appoint from their number a president, and may appoint a secretary, treasurer, and other officers, agents and employees, who shall respectively have such powers and perform such duties in the management of the prop- erty and affairs of the corporation, subject to the con- trol of the directors, as may be prescribed by them or in the by-laws. The directors may require any such officer, agent or employee to give security for the faithful per- formance of his duties, and may remove him at pleasure. The policyholders of an insurance corporation shall be eligible to election or appointment as its officers. Former § 27, Stock Corporation Law. Derivation.— L. 1890, Oi. 564, § 27; L. 1892, Ch. 688, § 27. § 31 STOCK CORPORATION LAW 203 Compare L. 1848, Ch. 40, § 5; h. 1853, Ch. 117, § 5; L. 1853, Ch. 135, § 6; L. 1854, Ch. 332, § 5; L. 1857, Ch. 546, § 5; L. 1874, Ch. 143, § 5; L. 1875, Ch. 611, §§. 6, 10; L. 1877, Ch. 828, § 5; L. 1878, Ch. 203, § 7. The president, while required to be a director (§ 30, Stock Cor- poration Law), need not be a stockholder. See § 25, Stock Cor- poration Law. The other officers need not be directors. See 201 N. Y. 194. See 149 App. Div. 28; 144 App. Div. 37; 132 N. Y. Supp. 570. § 31. Inspectors and their oath. — The inspectors of election of every stock corporation shall be appointed in the manner prescribed in the by-laws, but the inspec- tors of the first election of directors and of all previous meetings of the stockholders shall be appointed by the board of directors named in the certificate of incorpora- tion. No director or ofificer of a moneyed corporation shall be eligible to election or appointment as inspector. Each inspector shall be entitled to a reasonable compen- sation for his services, to be paid by the corporation, and if any inspector shall refuse to serve, or neglect to attend at the election, or his oflfice become vacant, the meeting may appoint an inspector in his place unless the by-laws otherwise provide. The inspectors appointed to act at any meeting of the stockholders shall, before entering upon the discharge of their duties, be sworn to faithfully execute the duties of inspector at such meet- ing with strict impartiality, and according to the best of their ability, and the oath so taken shall be subscribed by them, and immediately filed in the office of the clerk of the county in which such election or meeting shall be held, with a certificate of the result of the vote ta"ken thereat. Former § 28, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 28; L. 1892, Ch. 688, § 28. See 53 App. Div. '65. See §§ 23 and 27, General Corporation Law, relating to qualifica- tions of stockholders as voters and to powers of inspectors. For forms of Oath and Certificate of Inspectors of Election, see Forms Nos. 26 and 27, 204 STOCK COKPORATIOlir LAW § 32 § 32. Books to be kept. — Every stock corporation shall keep at its office correct books of account of all its busi- ness and transactions, and a book to be known as the stock book, containing the names, alphabetically ar- ranged, of all persons who are stockhol9ers of the cor- poration, showing their places of residence, the number of shares of stock held by them respectively, the time when they respectively became the owners thereof, and the amount paid thereon. On or before May first, nine- teen hundred and eighteen, every domestic stock life in- surance corporation shall cause to be filed in the office of the superintendent of insurance a list of the stock- holders of such corporation showing their places of resi- dence and the number of shares held by them respec- tively. The stock book of every such corporation shall be open daily, during at least three business hours, for inspection by any judgment creditor of the corporation; or by any person who shall have be'en stockholder of record in such corporation for at least six months imme- diately preceding his demand; or by any person hold- ing stock of such corporation to an amount equal to five per centum of all its outstanding shares; or by any per- son thereunto in writing authorized by the holders of stock of such corporation to an amount equal to five per centum of all of its outstanding shares. Persons so en- titled to inspect stock books may make extracts there- from. No transfer of stock shall be valid as against the corporation, its stockholders and creditors for any pur- pose except to render the transferee liable for the debts of the corporation to the extent provided for in this chap- ter, until it shall have been entered in such book as re- quired by this section, by an entry showing from and to whom transferred, nor, in the case of a domestic stock Tife insurance corporation until ten days after written notice of such transfer shall have been filed in the office of the superintendent of insurance. The stock book of every such corporation and the books of account of every bank shall be presumptive evidence of the facts § 32 STOCK COBPORATION LAW 205 therein so stated in favor of the plaintiff, in any action or proceeding against such corporation or any of its officers, directors or stockholders. Every corporation that shall neglect or refuse to keep or cause to be kept such books, or to keep any book open for inspection as herein required, shall forfeit to the people the sum of fifty dollars for every day it shall so neglect or refuse. If any officer or agent of any such corporation shall wil- fully neglect or refuse to make any proper entry in such book or books, or shall neglect or refuse to exhibit the same, or to allow them to be inspected and extracts taken therefrom as provided in this section, the corporation and such officer or agent shall each forfeit and pay to the party injured a penalty of fifty dollars for every such neglect or refusal, and all damages resulting to him therefrom. It shall be a defense to any action for penal- ties under this section that the person suing therefor has within two 3rears sold or offered for sale any list of stockholders of such corporation or of any other cor- poration, or has aided or abetted any person in procur- ing any stock list for any such purpose. Nothing herein impairs the power of the courts to compel by mandamus or judgment the production for examination by any stockholder of the stock books of a corporation. Amended by L. 1916, Ch. 127; L. 1918, Ch. 137. Former | 29, Stock Corporation Law. DerivatioiL— L. 1890, Ch. 564, § 29; L. 1892, Ch. 688, § 29; L. 1900, Ch. 128, § 1; L. 1901, Ch. 354, § 1. Compare L. 1848, Ch. 40, § 25; L. 1853, Ch. 117, § 25; L. 1874, Ch. 143, § 14; L. 1875, Ch. 611, §§ 16, 17. See § 665, Penal Law, post. It was formerly provided that the books of account, as well as the stock book, were to be open to the inspection of " stockholders and creditors of the corporation, and their personal representatives." See L. 1890, Ch. 564. An amendment required the inspection of the stock book only, and confined the right of inspection to " stock- holders and judgment creditors." See L. 1893, Ch. 688, § 29. Thja language was retained by L. 1901, Ch. 354. It would seem that the penalty provided for the neglect or refusal of any officer or agent of a corporation to allow an inspection of books or the making of 206 STOCK COEPOEATION LAW § 33 extracts therefrom applies only to the stock book, notwithstanding the use of the word " them." See 175 N. Y. 328; 163 N. Y. 433; 159 N. Y. 250; 150 App. Div. 204; 120 App. Div. 756; 117 App. Div. 79; 115 ^App. Div. 821; lOe App. Div. 349; 103 App. Div. 208; 45 App. Div.' 499; 80 Misc. 366; 62 Mise. 253; 46 Misc. 96; 43 Misc. 681; 30 MiSc. 44. For form of Stock Book, see Form No. 28. § 33. Stock books of foreign corporations. — Every foreign stock corporation having an office for the trans- action of business in this state, except moneyed and rail- road corporations, shall keep therein a book to be known as a stock book, containing the names, alphabetically arranged, of all persons who are stockholders of the cor- poration, showing their places of residence, the number of shares of stock held by them respectively, the time when they respectively became the owners thereof, and the amount paid thereon. Such stock book shall be open daily, during business hours, for inspection by any judgment creditor of such corporation; by any officer of this state authorized by law to investigate the affairs of any such corporation ; by any person who shall have been stockholder of record in such corporation for at least six months immediately preceding his demand ; by any person holding stock of such corporation to an amount equal to five per centum of all of its outstand- ing shares; or by any person thereunto in writing au- thorized by the holders of stock of such corporation to an amount equal to five per centum of all of its out- standing shares. Persons so entitled to inspect stock books may make extracts therefrom. If any such foreign stock corporation has in this state a transfer agent, whether such ^gent shall be a corporation or a natural person, such stock book may be deposited in the office of such agent and shall be open to inspection at all times during the usual hours of transacting business, to any stockholder, judgment creditor or officer of the state authorized by law to investigate the affairs of such cor- poration. For any refusal to allow such book to be in- § 34 STOCK COKPOEATION LAW 207 spected, such corporation and the officer or agent so refusing shall each forfeit the sum of fifty dollars to be recovered by the person to whom such refusal was made. It shall be a defense to any. action for penalties under this section that the person suing therefor has within two years sold or offered for sale any list of stockholders of such corporation or of any other corporation or has aided or abetted any person in procuring any stock list for any such purpose. Nothing herein impairs the power of the courts to compel by mandamus or judgment the production for examination by any stockholder of the stock books of a corporation. Amended by L. 1916, Ch. 137. Former § 53, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 56; L. 1892, Ch. 688, § 53; L. 1897, Ch. 384, § 3. Compare L. 1842. Ch. 165, §§ 1, 2. See § 665, PenaJ Law. See 196 N. Y. 302, rev'g 125 App. Div. 538; 156 App. Div. 734; 150 App. Div. 581; 147 App. Div. 882; 122 App. Div. 617; 78 Misc. 183; 47 Misc. 687; 47 Misc. 540; 126 N. Y. Supp. 2. For form of Stock Book, see Form No. 28. § 34. Annual report to secretary of state. — Every domestic stock corporatioh and every foreign stock cor- poration doing business within this state, except moneyed and railroad corporations, shall annually, during the month of January, or, if doing business without the United States, before the first day of May, may make a report as of the first day of January, which will state : 1. The amount of its capital stock, and the proportion actually issued. 2. The amoimt of its debts or an amount which they do not exceed. 3. The amount of its assets or an amount which its assets at least equal. 4. The names and addresses of all the directors and officers of the company, and in the case of a foreign cor- poration, the name also of the person cksignated in the 208 STOCK COBPORATION LAW § 35 manner prescribed by the code of civil procedure, as a person upon whom process against the corporation may be served within this state. Such report shall be made by the president or a vice- president or the treasurer or a secretary of the corpora- tion and shall be filed in the office of the secretary of state. If such report be not so made and filed, any such officer who shall thereafter neglect or refuse to make and to file such report, within ten days after written re- quest so to do shall have been made by a creditor or by a stockholder of the corporation, shall forfeit to the people the sum of fifty dollars for every day he shall so neglect or refuse. Former § 30, Stock Corporation Law. . Derivation.— L. 1890, Ch. 564, § 30; L. 1892, Ch. 2, § 1; L. 1892, Oh. 688, § 30; L. 1897, Ch. 384, § 3; L. 1901, Ch. 354, § 1; L. 1905, Ch. 415, § 1. Compare L. 1848, Ch. 37, § 12; L. 1848, Ch. 40, § 12; L. 1853, Ch. 117, § 12; L. 1853, Ch. 135, § 16; L. 1854, Ch. 332, § 24; L. 1857, Ch. 546, § 12; L. 1861, C!h. 147, § 9; L. 1875, Ch. 611, § 18; L. 1878, Ch. 203, § 44. See § 665, Penal Law. See 167 N. Y. 567; 165 N. Y. 1; 164 N. Y. 224; 158 N. Y. 607, 649, 728; 150 N. Y. 200, 559; 55 App. Div. 549; 33 Misc. 312, 619. For form of Annual Eepott, see Form No. 29. § 35. Liability of officers for false certificates, reports or public notices. — If any certificate or report made or public notice given by the officers or directors of a stock corporation shall be false in any material representa- tion, the officers and directors signing the same shall jointly and severally be personally liable to any person who has become a creditor or stockholder of the cor- poration upon the faith of any such certificate, report, notice or any material representation therein to the amount of the debt contracted upon the faith thereof if not paid when due, or the damage sustained by any pur- chaser of or subscriber to its stock upon the faith thereof. The liability imposed by this section shall exist in all cases where the contents of any such certificate, report § 35 STOCK CORPORATION LAW 209 or notice or of any material representation therein shall have been communicated either directly or indirectly to the person so becoming a creditor or stockholder and he became such creditor or stockholder upon the faith thereof. No action can be maintained for a cause of ac- tion created by this section unless brought within two years from the time the certificate, report or public notice shall have been made or given by the officers or directors of such corporation. Former § 31, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 31; L. 1893, Ch. 688, § 31. Compare L. 1848, Ch. 37, § 14; L. 1848, Ch. 40, § 15; L. 1853, Ch. 117, § 15; L. 1853, Ch. 135, § 17; L. 854, Ch. 238, | 15; L. 1875, Ch. 611, § 81. See § 665, Penal Law. 14 210 STOCK COKPOKATION LAW § 50 ARTICLE 4 Stock and Stockholders Section 50. Issue and transfers of stock. ' 51. Transfers of stock by stockholder indebted to corpora- tion. 52. Purchase of stock of other corporations. 53. Subscriptions to stock. 54. Time of payment of subscriptions to stock. 55. Consideration for issue of stock and bonds. 56. Liabilities of stockholders. 57. Liabilities of stockholders to laborers, servants or em- ployees. 58. Non-liability in certain cases. 59. Limitation of stockholder's liability. 60. Partly paid stock. 61. Preferred and common stock. 62. Increase or reduction of capital stock. 62a. Issue of stock to employees.* 63. Notice of meeting to increase or reduce capital stock. 64. Conduct of such meeting; certificate of increase or reduction. 65. Cliange in par value of shares. 66. Prohibited transfers to officers or stockholders. ■67. Application to court to order issue of new in place of lost certificate of stock. 68. Order of court upon such application. 69. Financial statement to stockholders. 70. Liabilities of officers, directors and stockholders of foreign corporations. § 50. Issue and transfers of stock. — The stock of every stock corporation shall be represented by certifi- cates prepared by the directors and signed by the presi- dent or vice-president and secretary or treasurer and sealed with tht seal of the corporation, and shall be transferable in the manner prescribed in this chapter and in the by-laws. No share shall be transferable until all previous calls thereon shall have been fully paid in. Part of former § 40, Stock Corporation Law. * Added by L. 1919, Ch. 308. §§ 51, 52 STOCK CORPORATION LAW 211 Derivation.— L. 1890, Ch. 546, § 40; L. 1893, Ch. 688, § 40; L. 1902, Ch. 601, § 1. For form of Certificate of Common Stock, see Form No. 30. § 51. Transfers of stock by stockholder indebted to corporation. — If a stockholder shall be indebted to the corporation, the directors may refuse to consent to a transfer of his stock until such indebtedness is paid, pro- vided a copy of this section is written or printed upon the certificate of stock. Part of former § 26, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 26; L. 1892, Ch. 688, § 26. Compare L. 1875, Ch. 611, § 12. See 158 N. Y. 576; 148 App. Div. 11. § 52. Purchase of stock of other corporations. — Any stock corporation, domestic or foreign, now existing or hereafter organized, except moneyed corporations, may purchase, acquire, hold and dispose of the stocks, bonds and other evidences of indebtedness of any corporation, domestic or foreign, and issue in exchange therefor its stock, bonds or other obligations if authorized so to do by a provision in the certificate of incorporation of such stock corporation, or in any certificate amendatory thereof or supplementary thereto, filed in pursuance of law, or if the corporation whose stock is so purchased, acquired, held or disposed of, is engaged in a business similar to that of such stock corporation, or engaged in the manufacture, use or sale of the property, or in the construction or operation of works necessary or useful in the business of such stock corporation, or in which or in connection with which the manufactured articles, product or property of such stock corporation are or may be used, or is a corporation with which such stock cor- poration is or may be authorized to consolidate. When any such corporation shall be a stockholder in any other corporation, as herein provided, its president or other officers shall be eligible to the office of director of such corporation, the same as if they were individually stock- 212 STOCK CORPORATION LAW §§ 53, 54 holders therein and the corporation holding such stock shall possess and exercise iii respect thereof, all the rights, powers and privileges of individual owners or holders of such stock. Part of former § 40, Stock Corporation Law.' Derivation.— L. 1890, Ch. 564, § 40; L. 1892, Ch. 688, § 40; L. 1902, Ch. 601, § 1. See 194 N. Y. 417; 125 App. Div. 804; 124 App. Div. 40i. § 53. Subscriptions to stock. — If the whole capital stock shall not have been subscribed at the time of filing the certificate of incorporation, the directors named in the certificate may open books of subscription to fill up the capital stock in such places and after giving such notices as they may deem expedient, and may continue to receive subscriptions until the whole capital stock is subscribed. At the time of subscribing, every subscriber, whose subscription is payable in money, shall pay to the directors ten per centum upon the amount subscribed by him in cash, and no such subscription shall be received or taken without such payment. Former § 41, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 41; L. 1892, Ch. 688, § 41. Compare L. 1850, Ch. 140, § 4; L. 1854, Ch. 232, § 11; L. 1867, Ch. 974, § 4; L. 1875, Ch. 611, § 5; L. 1878, Ch. 202, § 4; L. 1888, Ch. 462, § 3. See 152 App. Div. 139; 150 App. Div. 584; 128 App. Div. 127; 123 App. Div. 23; 49 App. Div. 589. § 54. Time of payment of subscriptions to stock. — Subscriptions to the capital stock of a corporation shall be paid at such times and in such instalments as the board of directors may by resolution require. If de- fault shall be made in the payment of any instalment as required by such resolution, the board may declare the stock and all previous payments thereon forfeited for the use of the corporation, after the expiration of sixty days from the service op the defaulting stockholder, person- ally, or by mail directed to him at his last known post- § 55 STOCK CORPOBATION LAW 213 office address, of a written notice requiring him to make payment within sixty days from the service of the notice at a place specified therein, and stating that, in case of failure to do so, his stock and all previous payments thereon will be forfeited for the use of the corporation. Such stock, if forfeited, may be reissued or subscrip- tions therefor may be received as in the case of stock not issued or subscribed for. If not sold for its par value or subscribed for within six months after such forfeiture, it shall be canceled and deducted from the amount of the capital stock. If by such cancellation, the amount of the capital stock is reduced below the minimum required by law, the capital stock shall be increased to the required amount within three months thereafter or an action may be brought or proceedings instituted to close up the busi- ness of the corporation as in the case of an insolvent corporation. If a receiver of the assets of the corpora- tion has been appointed, all unpaid subscriptions to the stock shall be paid at such times and in such instalments as the receiver or the court may direct. Former § 43, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 43; L. 1892, Ch. 688, § 43. Compare L. 1811, Ch. 67, | 5; L. 1848, Ch. 37, § 6; L. 1848, Oh. 40, i 6; L. 1848, Ch. 259, § 12; L. 1850, Ch. 140, § 7; L. 1853, Ch. 228, § 4; L. 1853, Ch. 117, § 6; L. 1854, Ch. 233, § 6; L. 1857, Ch. 546, § 6; L. 1861, Oh. 149, § 6; L. 1867, Ch. 974, § 7; L. 1872, Ch. 820, § 4; L. 1874, Ch. 143, § 6; L. 1875, Ch. 600, § 11; L. 1875, Ch. 611, § 11; L. 1878, Ch. 203, § 8. See 146 App. Div. 30; 145 App. Div. 627; 74 Misc. 581; 70 Misc. 664. § 55- Consideration for issue of stock and bonds. — No corporation shall issue either stock or bonds except for money, labor done or property actually received for the use and lawful purposes of such corporation. Any cor- poration may purchase any property authorized by its certificate of incorporation, or necessary for the use and lawful purposes of such corporation, and may issue stock to the amount of the value thereof in payment therefor, 214 STOCK COBPOBATION LAW § 56 and the stock so issued shall be full paid stock and not liable to any further call, neither shall the holder thereof be liable for any further payment under any of the pro- visions of this chapter ; and in the absence of fraud in the transaction the judgment of the directorfe as to the value of the property purchased shall be conclusive ; and in all statements and reports of the corporation, by law re- quired to be published or filed, this stock shall not be stated or reported as being issued for cash paid to the corporation, but shall be reported as issued for property purchased. Former § 42, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 42; L. 1892, Ch. 688, § 42; L. 1901, Ch. 354, § 1. Compare L. 1848, Ch. 40, § 14; L. 1853, Ch. 333, § 2; L. 1854, Ch. 232, § 11; L. 1857, Ch. 546, § 14; L. 1870, Ch. 773, § 2; L. 1875, Ch. 611, § 14. See 147 N. Y. 597 ; 128 App. Div. 135 ; 45 App. Div. 241. § 56. Liabilities of stockholders. — Every holder of capital stock not fully paid, in any stock corporation, shall be personally liable to its creditors, to an amount equal to the amount unpaid on the stock held by him for debts of the corporation contracted while such stock was held by him. As to existing corporations the liability imposed by this section shall be in lieu of the liability imposed upon stockholders of any existing corporation, under any general or special law, excepting laws relating to moneyed corporations, and corporations and associa- tions for banking purposes, on account of any indebted- ness hereafter contracted or any stock hereafter issued ; but nothing in this section contained shall create or in- crease any liability of stockholders of any existing cor- poration under any general or special law. Part of former § 54, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 57; L. 1S93, Ch. 688, § 54; L. 1901, Ch. 354, 5 1. See 194 N. Y. 165; 137 App. Div. 422. §§ 57, 58 STOCK COEPOKATION UlW 215 § 57. Liabilities of stockholders to laborers, servants or employees. — The stockholders of every stock corpora- tion shall jointly and severally be personally liable for all debts due and owing to any of its laborers, servants or employees other than contractors, for services performed by them for such corporation. Before such laborer, servant or employee shall charge such stockholder for such services, he shall give him notice in writing, within thirty days after the termination of such services, that he intends to hold him liable, and shall commence an action therefor within thirty days after the return of an execution unsatisfied against the corporation upon a judgment recovered against it for services. Part of former § 54, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 57; L. 1892, Ch. 688, § 54; L. 1901, Ch. 354, § 1. See 208 N. Y. 58; 204 N. Y. 304; 146 App. Div. 30; 134 App. Div. 811; 83 Misc. 434. § 58. Non-liability in certain cases. — No person hold- ing stock in any corporation as collateral security, or as executor, administrator, guardian or trustee, unless he shall have voluntarily invested the trust funds in such stock, shall be personally subject to liability as a stock- holder; but the person pledging such stock shall be con- sidered the holder thereof and shall be liable as stock- holder, and the estates and funds in the hands of such executor, administrator, guardian or trustee shall be liable in the like manner and to the same extent as the testator or intestate, or the ward or person interested in such trust fund would have been, if he had been living and competent to act and held the same stock in his own name, unless it appears that such executor, administrator, guardian or trustee voluntarily invested the trust funds in such stocks, in which case he shall be personally liable as a stockholder. Part of former § 54, Stock Corporation Law. Derivation.— L. 1S90, Ch. 504, § 57; L. 1892, Ch, 688, J 54; L. 1901, Oh. 354, § 1. 216 STOCK COKPOBATION LAW § 59 Compare L. 1848, Ch. 37, §| 10, 11, 15; L. 1848, Oh. 40, §§ 10, 11, 16, 18, 24; L. 1848, Ch. 259, § 2; L. 1848, Ch. 265, § 10; L. 1850, Ch. 140, §§ 10, 11; L. 1852, Ch. 238, §§ 5, 6, 7, 8, 9; L. 1853, Ch. 117, §§ 10, 11; L. 1853, Ch. 117, §§ 16, 18, 24; L. 1853, Ch. 135, § 14; L. 1854, Ch. 232, § 10; L. 1854, Ch. 232, §§ 12, 16, 18; L. 1857, Cli. 546, §§ 11, 16, 18; L. 1861, Ch. 149, § 2; L. 1867, Ch. 971, § 8; L. 1867, Ch. 974, §§ 10, 11; L. 1872, Ch. 248, § 3; L. 1872, Ch. 820, §§ 9, 10; L. 1874, Ch. 143, §§ 10, 13; L. 1874, Ch. 288, § 4; L. 1875, Ch. 606, §§ 12, 15; L. 1875, Ch. 611, §§ 23, 25; L. 1877; Ch. 228, § 3; L. 1878, Ch. 203; §§ 11, 12. See 208 N. Y. 58; 180 N. Y. 254; 158 N. Y. 157; 155 N. Y. 145; 45 App. Div. 241, 499; 48 App. Div. 12; 49 App. Div. 589; 88 App. Div. 401; 83 App. Div. 534; 118 App. Div. 605; 104 N. Y. Supp. 166; 80 Misc. 367; 57 Misc. 172. § 59. Limitation of stockholder's liability. — No action shall be brought against a stockholder for any debt of the corporation until judgment therefor has been recov- ered against the corporation, and an execution thereon has been returned unsatisfied in whole or in part, and the amount due on such execution shall be the amount recoverable, with costs against the stockholder. No stockholder shall be personally liable for any debt of the corporation not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought against the corporation within two years after the debt becomes due ; and no action shall be brought against a stockholder after he shall have ceased to be a stockholder, for any debt of the corporation, unless brought within two years from the time he shall have ceased to be a stockholder. Former § 55, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 58; L. 1892, Ch. 688, § 55; L. 1909, Ch. 61, § 59. Compare L. 1848^. 37, § 17; L. 1848, Ch. 40, §§ 10, 24; L. 1848, Ch. 255, § 10; L. 1852, Ch. 228, § 8; L. 1853, Ch. 117, § 24; L. 1857, Ch. 546, § 20; L. 1875, Ch. 611, §§ 23, 25; L. 1877, Ch. 228. § 3. See 208 N. Y. 57, 525; 204 N. Y. 304; 194 N. Y. 165; 157 N. Y. 166; 155 N. Y. 145; 152 N. Y. 121; 145 N. Y. 84; 124 N. Y. 25; 89 N. Y. 334; 146 App. Div. 30, 261; 144 App. Div. 606; 137 App. Div. 422; 134 App. Div. 811; 118 App. Div. 605; 113 App. Div. 782; 130 N. Y. Supp. 749; 72 Misc. 3; 70 Misc. 664. §§ 60, 61 STOCK COKPOBATION lAW 217 § 6o. Partly paid stock. — The original or the amended certificate of incorporation of any stock corporation may contain a provision expressly authorizing the issue of the whole or of any part of the capital stock as partly paid stock, subject to calls thereon until the whole thereof shall have been paid in. In such case, if in or upon the certificate issued to represent such stock, the amount paid thereon shall be specified, the holder thereof shall not be subject to any liability except for the pay- ment to the corporation of the amount remaining unpaid upon such stock, and for the payment of indebtedness to employees pursuant to sections fifty-seven, fifty-eight and fifty-nine of this chapter; and in any such case, the corporation may declare and may pay dividends upon the basis of the amount actually paid upon thg respective shares of stock instead of upon the par value thereof. Former § 62, Stock Corporation Law. Derivation.— L. 1901, Ch. 354, § 3. For form of Certificate of Partly Paid Stock, see Form No. 31. § 6i. Preferred and common stock. — Every domestic stock corporation may issue preferred stock and common stock and different classes of preferred stock, if the cer- tificate of incorporation so provides, or 1. By the unanimous consent of the stockholders ex- pressed in writing and filed in the office of the secretary of state and in the office of the clerk of the county in which the principal business office of the corporation is located, or 2. By the consent of the holders of record of two- thirds of the capital stock, given at a meeting called for that purpose upon notice such as is required for the annual meeting of the corporation. A certificate of the proceedings of such meeting, signed and sworn to by the president or a vice-president, and by the secretary or assistant secretary, of the corporation, shall be filed in the offices where the original certificate of incorporation of such corporation was filed and recorded ; and the cor- 218 STOCK CORPORATION LAW § 62 poration may, upon the written request of the holders of any preferred stock, by a two-thirds vote of its directors, exchange the same for common stock, and issue certifi- cates for common stock therefor, upon such valuation as may have been agreed upon in the certificate of organization of such corporation, or the issue of such preferred stock, or share for share, but the total amount of such capital stock shall not be increased thereby. This section shall apply to any domestic stock cor- poration whether organized under a general or special law, and any such corporation may issue preferred stock and common stock as herein provided notwithstanding provisions relating to the issuance of stock now pre- scribed by any other law. Amended by L. 1917, Cli. 543; L. 1920, Ch. 609; L. 1931, Ch. 131. Former § 47, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 47; L. 1892, Ch. 688, § 47; L. 1901, Ch. 354, § 1. Compare L. 1880, Ch. 235. See 78 N. Y. 159; 134 App. Div. 3«6. For form of Certificate of Fref erred Stooh, see Form No. 32. , For form of Notice of above Meeting, see Form No. 33. For form of Certificate of Proceedimgs to Authorize Preferred Stock see Form No. 34. Form No. 12 may be adapted for Unani- mous Consent. § 62. Increase or reduction of capital stock. — Any domestic corporation may increase or reduce its capital stock in the manner herein provided, but not above the maximum or below the minimum, if any, prescribed by general law governing corporations formed for similar purposes. If increased, the holders of the additional stock issued shall be subject to the same liabilities with respect thereto»as are provided by law in relation to the original capital ; if reduced, the amount of its debts and liabilities shall not exceed the amount of its reduced capital, unless an insurance corporation, in which case the amount of its debts and liabilities shall not exceed the amount of its reduced capital and other assets. The owner of any stock shall not be relieved from any lia- § 62-a STOCK CORPORATION LAW 219 bility existing prior to the reduction of the capital stock of any stock corporation. If a banking corporation, whether the capital be increased or reduced, its assets shall at least be equal to its debts and liabilities and the capital stock, as increased or reduced. A domestic rail- road corporation may increase or reduce its capital stock in the manner herein provided, notwithstanding any pro- vision contained herein, or in any general or special law fixing or limiting the amount of capital stock which may be issued by it. Former § 44, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 44; L. 1892, Ch. 688, § 44; L. 1894, Ch. 346; L. 1899, Ch. 696; L. 1901, Ch. 354, § 1. Compare L. 1848, Ch. 37, § ZO; L. 1848, Ch. 40, § 20; L. 1848, Ch. 265, § 8; L. 1853, Ch. 228, § 11; L. 1853, Ch. 117, § 20; L. 1853, Ch. 135, § 15; L. 1854, Ch, 232, § 19; L. 1867, Ch. 974, § 9; L. 1872, Ch. 248, § 7; L. 1872, Ch. 611, § 1; L. 1872, Ch. 829, § 13; L. 1873, Ch. 737, § 7; L. 1875, Ch. 606, § 14; L. 1875, Ch. 611, § 15; L. 1878, Ch. 203, § 10; L. 1878, Ch. 364, § 1. A tax of one-twentieth of one per cent, must he paid upon the amount of the increase of capital stock. See § 180, Tax Law, post. See 146 jST. Y. 46; 142 App. Div. 150. . § 62-a. Issue of stock to employees. — Any corpora- tion may with the consent of the stockholders either tinder such restrictions as they shall impose or, upon such terms and for such consideration as they shall direct issue any part or all of its unissued stock or additional stock authorized pursuant to section twenty- two or section sixty-two of this chapter to employees of the corporation or to employees of a subsidiary corpora- tion. Such consent may be given by all the stockholders in writing or by a majority vote at a stockholders' meet- ing held on the notice required by law for an annual meeting of stockholders, stating the object thereof. If any stockholder not voting in favor of the said issue of stock to employees shall, at such meeting, or within twenty days thereafter, object thereto and demand pay- ment for his stock, such stockholder or the corporation may at any time within sixty days after such meeting 220 STOCK COBPOBATION LAW § 63 take proceedings for the appraisal of his stock, as pro- vided under section eight of the business corporations law, on the consolidation of corporations. Upon the payment by the corporation of the amount of such ap- praisal and the charges and expenses »f the appraisers such stockholder shall cease to have any interest in such stock and the corporate property of such corporation, and such stock may be held or disposed of by the cor- poration. The corporation shall be liable for and shall pay to any such objecting stockholder the amount of any such award as finally sustained. Added by L. 1919, Ch. 308; amended by L. 1931, Ch. 46; L. 1921, Ch. 361. § 63. Notice of meeting to increase or reduce capital stock. — Every such increase or reduction must be au- thorized either by the unanimous consent of the stock- holders, expressed in writing and filed in the office of the secretary of state and in the office of the clerk of the coui;ity in which the principal business office of the cor- poration is located, or by a vote of the stockholders own- ing at least a majority of the stock of the corporation, taken at a meeting of the stockholders specially called for that purpose in the manner provided by law or by the by- laws. Notice of the meeting, stating the time, place and object, and the amount of the increase or reduction pro- posed, signed by the president or a vice-president and the secretary, shall be published once k week, for at least two successive weeks, in a newspaper in the county where its principal business office is located, if any is published therein, and a copy of such notice shall be duly mailed to each stockholdy or member at his last-known post-office address at least two weeks before the meeting or shall be personally served on him at least five days before the meeting. Former | 45, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 45; L. 1893, Ch. 688, § 45; L. 1893, Ch. 700, § 1; L. 1901, Ch. 354, i 1. § 64 STOCK CORPORATION" LAW 221 Compare L. 1848, Ch. 37, § 21; L. 1848, Ch. 40, § 31; L. 1848, Ch. 365, § 8; L. 1852, Ch. 338, § 13; L. 1853, Ch. 117, § 21; L. 1854, Ch. 232, § 20; L. 1866, Ch. 73, § 1; L. 1873, Ch. 248, § 7; L. 1872, Ch. 820, § 14; L. 1873, Ch. 737, § 7; L. 1875, Ch. 611, § 15; L. 1878, Ch. 264, § 2. 'For form of Notice of above Meeting, see Form, No. 35. See 142 App. Div. 150. § 64. Conduct of such meeting; certificate of increase or reduction. — If, at the time and place specified in the notice, the stockholders shall appear in person or by proxy in numbers representing at least a majority of all the shares of stock, they shall organize by choosing from their number a chairman and secretary, and take a vote of those present in person or by proxy, and if a sufficient number of votes shall be given in favor of such increase or reduction, or if the same shall have been authorized by the unanimous consent of stockholders expressed in writing signed by. them or their duly authorized proxies, a certificate of the proceedings showing a compliance with the provisions of this chapter, the amount of capital theretofore authorized, and the proportion thereof actu- ally issued, and the amount of the increased or reduced capital stock, and in case of the reduction of capital stock the whole amount of the ascertained debts and liabilities of the corporation, shall be made, signed, veri- fied and acknowledged by the chairman and secretary of the meeting, and filed in the office of the clerk of the county where its principal place of business shall be located, and a duplicate thereof in the office of the secre- tary of state, and, if a corporation formed under or sub- ject to the banking law, a triplicate thereof in the office of the superintendent of banks, and if an insurance cor- poration, a triplicate thereof in the office of the super- intendent of insurance. In case of a reduction of the capital stock, except of a railroad corporation or a moneyed corporation, such certificate or consent herein- after provided for shall have indorsed thereon the ap- proval of the comptroller, to the effect that the reduced capital is sufficient for the proper purposes of the cor- 222 STOCK COKPOKATION lAW § 64 poration, and is in excess of its ascertained debts and liabilities; and in case of th€ increase or reduction of the capital stock of a railroad corporation or a moneyed corporation, the certificate or the unanimous consent of stockholders, as the case may be, shall have indorsed thereon the approval of the public service commission having jurisdiction thereof, if a railroad corporation; of the superintendent of banks, if a corporation formed under or subject to the banking law, and of the superin- tendent of insurance, if an insurance corporation. When the certificate herein provided for, or the unanimous con- sent of stockholders in writing, signed by them or their duly authorized proxies, approved as aforesaid, has been filed, the capital stock of such corporation shall be in- creased or reduced, as the case may be, to the amount specified in such certificate or consent. The proceedings of the meeting at which such increase or reduction is voted, or, if such increase or reduction shall have been authorized by unanimous consent without a meeting, then a copy of such consent shall be entered upon the minutes of the corporation. If the capital stock is reduced, the amount of capital over and above the amount of the re- duced capital shall, if the meeting or consents so de- termine or provide, be returned to the stockholders pro rata, at such times and in such manner as the directors shall determine, except in the case of the reduction of the capital stock of an insurance corporation, as an alterna- tive to make good an existing impairment Former § 46, Stock Corporation Law. Amended by L. 1913, Ch. 305. Derivation.— L. 1890, Ch. 564, § 46; L. 1892, Ch. 688, § 46; L. 1893, Ch. 700; L. 1901, Ch. 354; L. 1902, Ch. 286; L. 1904, Ch. 123, §1. Compare L. 1848, Cli. 37, § 22; L. 1848, Ch. 40, § 22; L. 1848, Ch. 265, § 8; L. 1852, Ch. 228, § 14; L. 1853, Ch. 117, § 22, L. 1854, Ch. 232. § 21; L. 1866, Ch. 73, § 2; h. 1872, Ch. 248, § 7; L. 1872, Ch. 820, § 15; L. 1873, Ch. 737, § 7; L. 1875, Ch. 611, § 15; L. 1878, Ch. 264, § 3. See 142 App. Div. 150. §§ 65, 66 STOCK CORPORATION LAW 223 For forms of Unanimous Consent, and Certificate of Tote or Con- sent to Increase or Beduce Capital Stock, see Forms Nos. 36 and 37. For form of Affidavit of Custodian of Stock Book, see Form No. 25. For form of Proof to Secure Approval of State Comptroller to Seduction, see Form No. 39. § 65. Change in par value of shares. — The number of shares into which the capital stock of any stock cor- poration is divided may be increased or reduced by a two- thirds vote of all stock duly represented at a meeting held and conducted in like manner, and upon filing a like certificate, as required for the increase or reduction of its capital stock. If such increase or reduction of the number of shares be so authorized, the corporation shall issue to each stockholder certificates for as many shares of the new stock as equal in par value the shares of the old stock held by him, upon surrender and can- cellation of such old stock. This section does not authorize the increase or reduction of the capital stock of such corporation. Former § 56, Stock Corporation Law. Derivation.— L. 1893, Ch. 196, § 1; L. 1901, CL. 354, § 1. Compare L. 1866, Ch. 73; L. 1884, Ch. 397. For form of Certificate of Vote and Consent to Increase or Seduc- tion of Far Value of Shares, see Form No. 40. § 66. Prohibited transfers to officers or stockholders. — No corporation which shall have refused to pay any of its notes or other obligations, when due, in lawful money of the United States, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other con- sideration than the full value of the property paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it 224 STOCK COEPOKATIOSr LAW § 66 or by any officer, director or stockholder when the cor- poration is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular cred- itor over other creditors of the corporation, shall be valid, except that laborers' wages for services shall be preferred claims and be entitled to payment before any other creditors out of the corporation assets in excess of valid prior liens or incumbrances. No corporation formed under or subject to the banking, insurance or railroad law shall make any assignment in contempla- tion of insolvency. Every person receiving by means of any such prohibited act or deed any property of the corporation shall be bound to account therefor to its creditors or stockholders or other trustees. No stock- holder of any such corporation shall make any transfer or assignment of his stock therein to any person in con- templation of its insolvency. Every transfer or assign- ment or other act done in violation of the foregoing provisions of this section shall be void. No conveyance, assignment or transfer of any property of a corporation formed under or subject to the banking law, exceeding in value one thousand dollars, shall be made by such cor- poration, or by any officer or director thereof, unless authorized by previous resolution of its board of directors, except promissory notes or other evidences of debt issued or received by the officers of the corporation in the trans- action of its ordinary' business, and except payments in specie or other current money or in bank bills made by such officers. No such conveyance, assignment or trans- fer shall be void in the hands of a purchaser for a valu- able consideration without notice. Every director or officer of a corporation who shall violate or be con- cerned in violating, any provisions of this section, shall be personally liable to the creditors and stockholders of the corporation of which he shall be director or an officer to the full extent of any loss they may respectively sus- tain by such violation. Former § 48, Stock Corporation Law. § 67 STOCK CORPORATION LAW 225 Derivation.— L. 1890, Oh. 564, § 48; L. 1893, Ch. 688, § 48; L. 1901, Ch. 354, § 1. See 197 N. Y. 412; 193 N. Y. 189; 163 N. Y. 340; 163 N. Y. 368; 161 N. Y. 336, 539, 550; 159 N. Y. 490; 145 N. Y. 441; 133 N. Y. 164; 157 App. Div. 725, 738; 149 App. Div. 474, 688; 143 App. Div. 396; 138 App. Div. 691; 118 App. Div. 381; 109 App. Div. 840; 94 App. Div. 117; 79 App. Div. 419; 56 App. Div. 43; 55 App. Div. 87; 45 App. Div. 579; 37 App. Div. 203; 127 N. Y. Supp. 368; 68 Misc. 329. § 67. Application to court to order issue of new in place of lost certificate of stock. — The owner of a lost or destroyed certificate of stock, if the corporation shall re- fuse to issue a new certificate in place thereof, may apply to the supreme court, at any special term held in the district where he resides, or in which the principal busi- ness office of the corporation is located, for an order re- quiring the corporation to show cause why it should not be required to issue a new certificate in place of the one lost or destroyed. The application shall be by petition, duly verified by the owner, stating the name of the cor- poration, the number and date of the certificate, if known, or if it can be ascertained by the petitioner; the number of shares named therein, to whom issued, and as par- ticular a statement of the circumstances attending such loss or destruction as the petitioner can give. Upon the presentation of the petition the court shall make an order requiring the corporation to show cause, at a time and place therein mentioned, why it should not issue a new certificate of stock in place of the one described in the petition. A copy of the petition and order shall be served on the president or other head of the corporation, or on the secretary or treasurer thereof, personally, at least ten days before the time for showing cause. Former § 50, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 50; L, 1892, Ch. 688, § 50. Compare L. 1873, Ch. 151, § 1. See 148 N. Y. 441; 75 App. Div. 469; 69 App. Div. 149; 39 Misc. 356. 15 226 STOCK COKPOEATION LAW § 68 § 68. Order of court upon such application. — Upon the return of the order, with proof of due service thereof, the court shall, in a summary manner, and in such mode as it may deem advisable, inquire into the truth of the facts stated in the petition, and hear th^ proofs and al- legations of the parties in regard thereto, and if satisfied that the petitioner is the lawful owner of the number of shares, or any part thereof, described in the petition, and that the certificate therefor has been lost or destroyed, and cannot after due diligence be found, and that no suf- ficient cause has been shown why a new certificate should not be issued, it shall make an order requiring the corporation, within such time as shall be therein designated, to issue and deliver to the petitioner a new certificate for the number of shares specified in the order, upon depositing such security, or filing a bond in such form and with such sureties as to the court shall appear sufficient to indemnify any person other than the petitioner who shall thereafter be found to be the lawful owner of the certificate lost or destroyed ; but such pro- vision requiring security to be deposited or bond filed is to be construed as excluding an application made by a domestic municipal corporation or by a public officer in behalf of such corporation ; and the court may direct the publication of such notice, either, before or after making such order as it shall deem proper. Any person claiming any rights under the certificates alleged to have been lost or destroyed shall have recourse to such indemnity, but in any application under the provisions of this chapter, in which a domestic municipal corporation or a public officer in behalf of such corporation, shall be by the fore- going provisions of this section excused from depositing security or filJIig a bond, such municipal corporation shall be liable for all damages that may be sustained by any person, in the same case and to the same extent as sureties to a bond or undertaking would have been, if such a bond or undertaking had been filed ; and the cor- poration issuing such certificate shall be discharged from all liability to such person upon compliance with § 69 STOCK COKPOEATION LAW 227 such order; and obedience to the order may be enforced by attachment against the officer or officers of the cor- poration on proof of his or their refusal to comply with it. Former | 51, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 51; L. 1892, Ch. 688, § 51; L. 1905, Ch. 35, § 1. Compare L. 1873, Ch. 151, § 3. See 39 Misc. 356. § 69. Financial statement to stockholders. — Stock- holders owning five per centum of the capital stock of any corporation other than a moneyed corporation, not exceeding one hundred thousand dollars, or three per centum where it exceeds one hundred thousand dollars, may make a written request to the treasurer or chief fiscal officer thereof, for a statement of its affairs, under oath, embracing a particular account of all its assets and liabilities, and the treasurer shall make such statement and deliver it to the person presenting the request within thirty days thereafter, and keep on file for twelve months thereafter a copy of such statement, which shall at all times during business hours be exhibited to any stockholder demanding an examination thereof; but the treasurer or such chief fiscal officer shall not be required to deliver more than one such statement in any one year. The supreme court, or any justice thereof, may upon application, for good cause shown, extend the time for making and delivering such certificate. For every neglect or refusal of the treasurer or other chief fiscal officer thereof to comply with the provisions of this sec- tion he shall forfeit and pay to the person making such request the sum of fifty dollars, and the further sum of ten dollars for every twenty-four hours thereafter until such statement shall be furnished. Former § 52, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 52; L. 1892, Ch. 688, § 52. Compare L. 1854, Ch. 201; L. 18«2, Ch, 472. 228 STOCK CORPORATION LAW § 70 See 157 App. Div. 338; 153 App. Div. 599; 151 App. Div. 656; 149 App. Div. 825; 71 App. Div. 391; 43 Hun, 188; 84 Misc. 577; 9 Misc. 373. § 70. Liabilities of officers, directors and stockholders of foreign corporations. — Except as otherwise provided in this chapter the officers, directors and stockholders of a foreign stock corporation transacting business in this state, except moneyed and railroad corporations, shall be liable under the provisions of this chapter, in the same manner and to the same extent as the officers, directors and stockholders of a domestic corporation, for: 1. The making of unauthorized dividends; 2. Unlawful loans to stockholders ; 3. Making false certificates, reports or public notices ; 4. An illegal transfer of the stock and property of such corporation, when it is insolvent or its insolvency is threatened ; 5. The failure to file an annual report. Such liabilities may be enforced in the courts of this state, in the same manner as similar liabilities imposed by law upon the officers, directors and stockholders of domestic corporations. Former § 60, Stock Corporation Law, altered. Derivation.— L. 1897, Oh. 384, § 4. See §§ 28, 29, 34, 35 and 66, Stock Corporation Law, ante; 'see also §§ 15 and 16, General Corporation Law, ante. §§ 80, 81 STOCK CORPORATION LAW 229 ARTICLE 5 Laws Repealed; When to Take Effect Section 80. Laws repealed. 81. When to take eflfect. § 8o. Laws repealed. — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is hereby repealed. § 8i. When to take effect. — This chapter shall take effect immediately.* Schedule of Laws Repealed Laws of Chapter Section 1814 12 All (38th Sess.) 1825 325 1-3, 12 1828 20 IS, Tllf 17, 18 (2d Meet.) 1828 21 I, Tl 180 (2d Meet.) 1830 71 All 1848 14s All 1853 176 All 1853 425 All 1853 460 All 1869 742 7 1875 392 8 1884 434 All 1889 57 All 1890 564 All 1892 337 All 1892 688 All 1893 196 All 1893 638 All 1893 700 All 1894 346 All 1896 929 ^^1 'Became a law February 17, 1909. 230 STOCK CORPORATION LAW Laws of CSiapter Section 1896 932 I, pt. adding § 58 to L. 1892, Ch. 688. 1897 384 All 1899 354 All 1899 696 All 1900 128 All 1900 164 All 1900 ,. . 476 All 1901 130 All 1901 354 All 1902 80 All 1902 98 All 1902 286 All 1902 601 All 1903 320 All 1904 123 All 1904 307 All 1904 706 All • 1905 35 All 1905 415 All 1905 489 All 190S 745 All ' ■ . 1905 750 All 1905 751 All 1906 238 All GENERAL ASSOCIATIONS LAW* Laws of 1909, Chapter 34, constituting Chapter Twenty-nine of the Consolidated Laws. Article 1. Short title; definitions (§§ 1, 3). 2. Joint-stock associations (§§ 3-11). 3. Action or proceeding by or against unincorporated asso- ciations (§§ 12-17).** 4. Laws repealed; when to take effect (§§ 20, 21). t ARTICLE I Short Title; Definitions Section 1. Short title. 2. Definitions. § I. Short title. — This chapter shall be known as the " General Associations Law." Amended by L. 1920, Ch. 915. § 2. Definitions. — As used in this chapter, the term " joint-stock association " includes every unincorporated joint-stock association, company or enterprise having written articles of association and capital stock divided into shares, but does not include a corporation ; and the term " stockholder " includes every member of such an association. ARTICLE 2 Joint-stock Associations^ Section 3. Contents of articles of association. 4. Certificate to be filed within sixty days and annually thereafter; penalty; evidence. * Title changed from "Joint-stock Association Law" by L. 1920, Ch. 915. ** Article 3 was added by L. 1920, Ch. 915. t Article renumbered by L. 1920, Ch. 915. i Heading changed by L. 1920, Ch. 915. [231] 232 GENERAL ASSOCIATIONS LAW §§ 3, 4 Sections. Dissolution. 6. Power to take and convey real property. 7. Changing articles of association. 8. Proceeding to mortgage, lease or sell real estate. 9. Receiver of joint stock-association. 10. Injunction against joint-stock associaffion. 11. Misnomer of party not available. § 3. Contents of articles of association. — The articles of association of a joint-stock association may: 1. Provide that the death of a stockholder thereof, or the transfer of his shares of stock therein, shall not work a dissolution of the association ; 2. Prescribe the number of its directors, not less than three, to have the sole management of its affiairs; 3. Contain any other provision for the management of its affairs not inconsistent with law. See 158 App. Div. 387, 397. § 4. Certificate to be filed within sixty days and annu- ally thereafter; penalty; evidence. — Every joint-stock association transacting business within this state shall, within sixty days after its formation, and in each Jan- uary thereafter, file with the secretary of state, and file and record with the clerk of the county in which its prin- cipal business is carried on, a written certificate, signed and verified by its president and treasurer, stating the name and date of organization of such association, the number of its stockholders, the names and places of resi- dence of its officers, and its principal place of business. Any such certificate, the record thereof, or a certified copy of such certificate or record shall be presumptive evidence of the truth of all facts therein stated against such association, its officers and stockholders. The officers of a joint-stock association who fail to comply with the provisions of this section shall be jointly and severally liable to pay to the people of this state a penalty of fifty dollars for each day such failure continues. Amended by L. 1921, Ch. 131. §§ 5-7 GENEEAL ASSOCIATIONS LAW 233 § 5. Dissolution. — A joint-stock association shall not be dissolved except in pursuance of its articles of asso- ciation, or by consent of all its stockholders, or by judg- ment of a court for fraud in its management, or for good cause shown. § 6. Power to take and convey real property. — A joint- stock association, in the name of its president, as such president, may purchase, take, hold and convey such real property only, 1. As may be necessary for its immediate accommoda- tion in the convenient transaction of its business. 2. As may be mortgaged to it in good faith by way of security for loans made by or moneys due to it. 3. As it may purchase at sales under judgments, de- crees or mortgages held by it. § 7. Changing articles of association. — Any change in the articles of association of a joint-stock association not inconsistent with law may be made with the consent of all its stockholders, or otherwise, as the articles of asso- ciation may provide. Unless the articles of association of a joint-stock association contain provisions to the con- trary, its directors may be increased or reduced to not less than three; its capital stock may be increased or re- duced ; or the term of its existence may be extended, with the consent of its stockholders owning at least two- thirds of its stock issued and outstanding, on the follow- ing terms and conditions: The consent of the requisite number of stockholders must be given by vote, or by writing presented and filed, at a regular or regularly called special meeting. Notice of the time and place of such meeting, with notice of the proposed change, must be personally served on each stockholder of the associa- tion at least thirty days before the meeting, or by mail- ing it to such stockholder at his last-known post-office address at least sixty days before the meeting. The amount of its capital stock shall not be reduced below 234 GENEBAI, ASSOCIATIONS LAW §§ 8-10 the amount of its paid-up capital stock, nor shall it be reduced if the liabilities of the association exceed its assets. § 8. Proceeding to mortgage, lease or sell real estate. — Whenever any joint-stock association is required by law to make application to the court for leave to mortgage, lease or sell its real estate, the proceeding therefor shall be had as prescribed for corporations in article four of the general corporation law. § g. Receiver of joint-stock association. — Section ten of this chapter and sections three hundred and six and three hundred and seven of the general corporation law apply to an action or a special proceeding, against a joint-stock association created by or under the laws of the state, or a trustee, director. Or other officer thereof; or against a joint-stock association created by or under the laws of another state, government, or country, or a trustee, director, or other oificer thereof, where the asso- ciation does business within the state, or has, within the state, a business agency or a fiscal agency, or an agency for the transfer of its stock. Added by L. 1920, Ch. 915. § 10. Injunction against joint-stock association. — An injunction order, suspending the general and ordinary business of a joint-stock association, consisting of seven or more persons, or suspending from office, or restrain- ing from the performance of his duties, a trustee; direc- tor, or other officer thereof, can be granted only by the court, upon notice of the application therefor, to the proper officer of the association, or to the trustee, direc- tor, or other officer enjoined. If such an injunction order is made, otherwise than as prescribed in this sec- tiion it is void. Added by L. 1920, Ch. 915. § 11 GENERAL ASSOCIATIONS LAW 235 § II. Misnomer of party npt available. — Where an ac- tion, authorized by a law of the state, is brought against one or more persons, as stockholders of a joint-stock as- sociation, an objection to any of the proceedings cannot be taken, by a person properly made a defendant in the action, on the ground that the plaintiff has joined with him, as a defendant in the action, a person, whose name appears on the stock-books of the association, as a stock- holder thereof, by the name so appearing; but who is misnamed, or dead, or is not liable for any cause. In such a case, the court may, at any time before final judg- ment, upon motion of either party, amend the pleadings and other papers, without prejudice to the previous pro- ceedings, by substituting the true name of the person intended, or by striking out the name of the person who is dead, or not liable, and, in a proper case, inserting the name of his representative or successor. Added by L. 1920, Ch. 915. 236 GENERAL ASSOCIATIONS LAW §§ 12, 13 ARTICLE 3 Action or Proceeding by or Against Unincorporated Associations Section 13. Action or proceeding by uuincorpoi-ated association. 13. Action or proceeding against unincorporated association. 14. When action not to abate. 15. Effect of judgment; execution thereupon. 16. Subsequent action against members. 17. Article permissive; effect upon statute of limitations. § 12. Action or proceeding by unincorporated associa- tion. — An action or special proceeding may be main- tained, by the president or treasurer of an unincorpor- ated association, consisting of seven or more persons, to recover any property, or upon any cause of action, for or upon which all the associates may maintain such an ac- tion or special proceeding, by reason of their interest or ownership therein, either jointly or in common. An action may likewise be maintained by such president or treasurer to recover from one or more members of such association his or their proportionate share of any moneys lawfully expended by such association for the benefit of such associates, or to enforce any lawful claim of such association against such member or members. Added by L. 19ao, Ch. 915. § 13. Action or proceeding against unincorporated association. — An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or owner- ship, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of per- sons, which has a president or treasurer, is deemed an association within the meaning of this section. Added by L. 1930, Ch. 915. §§ 14-16 GENERAL ASSOCIATIONS LAW 237 § 14. When action not to abate. — The death or legal incapacity of a member of the association does not afifect an action or special proceeding, brought as pre- scribed in the last two sections. If the officer, by or against whom it is brought, dies, is removejl, resigns, or becomes otherwise incapacitated, during the pen- dency thereof, the court must make an order, directing it to be continued by or agairist his successor in office, or any other officer, by or against whom it might have been originally commenced. Added by L. 19ao, Ch. 91S. § 15. Effect of judgment; execution thereupon. — In such an action, the officer against whom it is brought cannot be arrested; and a judgment against him does not authorize an execution to be issued against his property, or his person ; nor does the docketing thereof bind his real property, or chattels real. Where such a judgment is for a sum of money, an execution issued thereupon must require the sheriff to satisfy the same, out of any personal or real property belonging to the association, or owned, jointly or in common, by all the members thereof. Added by L. 1920, Ch. 915. § 16. Subsequent action against members. — Where an action has been brought against an officer, or a counter- claim has been made, in an action brought by an officer, as prescribed in this article, another action, for the same cause, shall not be brought against the members of the association, or any of them, until after final judgment in the first action, and the return, wholly or partly un- satisfied or unexecuted, of an execution issued there- upon. After such a return, the party in whose favor the execution was issued, may maintain an action, as fol- lows: I. Where he was the plaintiff, or a defendant recover- ing upon a counterclaim, he may maintain an action against the members of the association, or, in a proper 238 GENERAL ASSOCIATIONS LAW § 17 case, against any of them, as if the first action had not been brought, or the counterclaim had not been made, as the case requires; and he may recover therein, as part of his damages, the costs of the first action, or so much thereof, as the sum, collected by virtue of the execution, was insufficient to satisfy. 2. Where he was a defendant, and the case is not within subdivision first of this section, he may. maintain an action, to recover the sum remaining uncollected, against the persons who composed the association, when the aotion against him was commenced, or the survivors of them. But this section does not affect the right of the per- son, in whose favor the judgment in the first action was rendered, to enforce a bond or undertaking, given in the course of the proceedings therein. Section eleven of this chapter applies to an action brought, as prescribed in this section against the members of any association, which keeps a book for the entry of changes in the mem- bership of the association, or the ownership of its prop- erty; and to each book so kept. Added by L. 1930, (3h. 915. § 17. Article permissive; effect upon statute of limita- tions. — ^This article does not prevent an action from being brought by or against all the members of an asso- ciation, except as prescribed in the last section. Where an action is brought against the members of the asso- ciation, as prescribed in subdivision first of the last sec- tion, the time between the commencement of the action by or against the officer, and the return of the first execution issued upon the final judgment rendered therein, is not a part of the time limited by law, for the commencement of the second action. Added hj L. 1930, Oh. 915. §§ 20, 21 GENERAL ASSOCIATIONS LAW 239 ARTICLE 4* Laws Repealed; When to Take Effect Section 30. Lavs repealed. 21. When to take effect. § 20. Laws repealed. — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is hereby repealed. § 21. When to take effect. — This chapter shall take effect immediately.t Laws of Chapter Section 1854 245 All 1867 289 All 1881 599 All 1885 505 All 1894 235 All Code Civil Procedure . . . 3390-3397, part relating to joint-stock associations • Artxcle renumbered by L. 1920, Ch. 915. t Became a law February 17, 1909. HISCELUNEOUS PROVISIONS AFFECTING CORPORATIONS [241] 16 TAX LAW PROVISIONS Laws of 1909, Chaptei 62, constituting Chapter Sixty of the Consolidated Laws. LOCAL TAXATION ARTICLE I Taxable Property and Place of Taxation § I. Short title. — This chapter shall be known as the "Tax Law." § 2. Definitions. — i. " Tax Commission " as used in this chapter means the state ta'x commission and *' tax department " means the state tax department. 2. " Comptroller " as used in this chapter means the state comptroller. 3. "Assessor " as used in this chapter shall be deemed to include any elected or appointed officer of any civil or political subdivision of the state, charged by law with the duty of assessing property for taxation for state, county or local purposes. 4. " Tax district " as used in this chapter, means un- less otherwise herein provided a city or town of this state. 5. " County treasurer " includes any officer perform- ing the duties devolving upon such office under what- ever name. 6. The terms " land," " real estate," and " real prop- erty," as used in this chapter, include the land itself above and under water, all buildings and other articles and structures, substructures and superstructures, erected upon, under or above, or affixed to the same ; all wharves Only such portions of the Tax Law are given as pertain to cor- porations. [243] 244 TAX LAW PROVISIONS § 2 and piers, including the value of the right to collect wharfage, cranage or dockage thereon ; all bridges, all telegraph lines, wires, poles and appurtenances; all sup- ports and inclosures for electrical conductors and other appurtenances upon, above and under ground; all sur- face, underground or elevated railroads, including the value of all franchises, rights or permission to construct, maintain or operate the same in, under, above, on or through, streets, highways or public places; all railroad structures, substructures and superstructures, tracks and the iron thereon; branches, switches and other fixtures permitted or authorized to be made, laid or placed in, upon, above or under any public or private road, street or ground ; all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place for conducting steam, he^t, water, oil, electricity or any property, substance or product capable of transportation or conveyance therein or that is protected thereby, in- cluding the value of all franchises, rights, authority or permission to construct, maintain or operate, in, under, above, upon, or through, any streets, highways or public ■ places, any mains, pipes, tanks, conduits or wires, with their appurtenances, for conducting water, steam, heat, light, power, gas, oil or other substance, or electricity for telegraphic, telephonic or other purposes; all trees and underwood growing upon land, and all mines, minerals, quarries and fossils in and under the same, except mines belonging to the state. A franchise, right, authority or permission specified in this subdivision shall for the pur- pose of taxation be known as a "special franchise." A special franchise shall be deemed to include the value of the tangible property of a person, copartnership, associa- tion or corporatibn situated in, upon, under or above any street, highway, public place or public waters in connec- tion with the special franchise. The tangible property so included shall be taxed as a part of the special franchise. No property of a municipal corporation shall be subject to a special franchise tax. ** ******j|tj)!l|=* §§ 3, 4 TAX LAW PROVISIONS 245 8. The terms " personal estate," and " personal prop- erty," as used in this chapter, include chattels, money, things in action, debts due from solvent debtors, whether on account, contract, note, bond or mortgage; debts and obligations for the payment of money due or owing to persons .residing within this state, however secured or wherever such securities shall be held ; debts due by in- habitants of this state to persons not residing within the United States for the purchase of any real estate; public stocks, stocks in moneyed corporations, and such portion of the capital of incorporated companies, liable to tax- ation on their capital, as shall not be invested in real estate. Amended by L. 1916, Ch. 333. See 308 N. Y. 433; 203 N. Y. 126; 156 App. Div. 345; 143 App. Div. 34; 131 N. Y. Supp. 363. § 3. Property liable to taxation. — All real property within this state, and all personal property situated or owned within this state, is taxable unless exempt from taxation by law. See 102 N. Y. 17«; 158 App. Div. 330; 156 App. Div. 344; 54 App. Div. 217; 73 Misc. 134; 33 Misc. 84. § 4. Exemption from taxation. — The following prop- erty shall be exempt from taxation ; * * * 12. All vessels registered at any port in this state and owned by an American citizen, or association, or by any corporation, incorporated under the laws of the state of New York, engaged in ocean commerce between any port in the United States and any foreign port, are exempted from all taxation in this state, for state and local pur- poses ; and all such corporations, all of whose vessels are employed between foreign ports and ports in the United States, are exempted from all taxation in this state, for state and local purposes, upon their capital stock, fran- chises and earnings, until and including December thirty- first, nineteen hundred and twenty-two. 246 TAX LAW PBOVISIOWS §§ 4-0-6 13. A bond, mortgage, note, contract, account or other demand, belonging to any person not a resident of this state, sent to or deposited in this state for collection ; the products of another state, owned by a non-resident of this state and consigned to his agent in this* state for sale on commission for the benefit of the owner ; moneys of a non- resident of this state, under the control or in the pos- session of his agent in this state, when transmitted to such agent for the purpose of investment or otherwise. ************ 16. The owner or holder of stock in an incorporated company liable to taxation on its capital, shall not be taxed as an individual for such stock. * * * 21. Household furniture and personal effects to the value of one thousand dollars. Subd. 21 was added by L. 1912, Ch. 267. § 4-a. Exemption of intangible personal property. — Notwithstanding any provision of this chapter, or of any other general, special or local law, intangible personal property, except shares of stock of banks or banking asso- ciations, whether referred to as personal property, capital, capital stock or otherwise, after June thirtieth, nineteen hundred and twenty, shall be exempt from taxation locally for state or local purposes. This exemption shall be in addition to all other exemptions of personal prop- erty from local taxation, whether based upon the char- acter, ownership or amount of property. The term " intangible personal property," as used in this section, means incorporeal property, including money, deposits in banks, shares of stock, bonds, notes, credits, evi- dences of an interest in property and evidences of debt. Added by L. 1920, Ch. 647. § 6. The assessment of real and personal property. — AH real and personal property subject to taxation shall be assessed at the full value thereof, provided, however, that the owner of personal property shall be allowed a §§ 7-9 TAX LAW PBOVISIONS 247 deduction from the full value of all his taxable personal property to the extent of the just debts owing by him but no such deduction shall be allowed by reason of the indebtedness of the owner contracted or incurred in the purchase of non-taxable property or securities owned by him or held for his benefit, nor for or on account of any indirect liability as surety, guarantor, indorser or otherwise, nor for or on account of any debt or liability contracted or incurred for the purpose of evading taxa- tion. Amended by L. 1914, C!h. 277. § 7. When property of non-residents is taxable. — I. Non-residents of the state doing business in the state, either as principals or partners, shall be taxed on the capital invested in such business, as personal property, at the place where such business is carried on, to the same extent as if they were residents of the state. 2. The personal property of non-residents of the state having an actual situs in the state, and .not 'forming a part of capital invested in business in the state, shall be assessed in the name of the owner thereof for the pur- pose of identification and taxed in the tax district where such property is situated, unless exempt by law. This subdivision shall not apply to money, or negotiable col- lateral securities, deposited by, or debts owing to, such non-residents nor shall it be construed as in any manner modifying or changing the law imposing a tax on real estate mortgage securities. See 141 N. Y. 118; 147 N. Y. 31; 157 N. Y. 159; 49 App. Div. 108; 78 Misc. 214; 32 Misc. 61. § 9. Place of taxation of real property. — Real property shall be assessed as of July first in the tax district in which it is situated. In all cases the assessment shall be deemed as against the real property itself, and the property itself shall be holden and liable to sale for any tax levied upon it. Amended by L. 1911, C*. 315; L. 1916, Oi. 323. 248 TAX LAW PBOVISIONS §§ 10-12 § 10. Taxation of real property divided by line of tax district. (Repealed by L. 1917, Ch. 154.) § II. Place of taxation of property of corporations.— The real estate of all incorporated companies liable to taxation shall be assessed in the tax district in which the same shall lie, in the same manner as the real estate of individuals. All the personal estate of every incor- porated company liable to taxation on its capital shall be assessed in the tax district where the principal office or place for transacting the financial concerns of the company shall be, or if such company have no prin- cipal office, or place for transacting its financial con- cerns, then in the tax district where the operations of such company shall be carried on. In the case of a toll bridge, the company owning such bridge shall be assessed in the tax district in which the tolls are col- lected; and where the tolls of any bridge, turnpike, or canal company are collected in several tax districts, the company shall be assessed in the tax district in which the treasurer or other officer authorized to pay the last preceding dividend resides. See 131 N. Y. Supp. 361. § 12. Taxation of corporate stock. — The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment-roll or shall be exempt by law, together with its surplus profits or reserve funds exceeding ten per centum of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such comply which are taxable upon their capital stock under the laws of this state, shall be assessed at its actual value. See § 319-j, Tax Law, post. See laS N. y. 433; 146 N. Y. 304; 156 N. Y. 417. §§ 20, 21 TAX LAW PROVISIONS 249 ARTICLE 2 Mode of Assessment § 20. Ascertaining facts for assessment. — The assess- ors in each tax district shall annually between January first and July first ascertain by diligent inquiry all the property and the names of all the persons taxable therein. The comptroller shall on or about April fifteenth in each year transmit to the assessors of each tax district a statement of all lands owned by the state in such district, and such statement shall be used by the assessors in making up their assessment-rolls and shall be con- sidered by them as their authority to assess to the state such of the lands described thereon as clre legally subject to taxation. Amended by L. 1911, Ch. 116; L. 1911, Ch. 805; L. 1912, Ch. 870; L. 1916, Ch. 323, § 6. See 145 App. Div. 9. § 21. Preparation of assessment-roll. — i. The assess- ors shall prepare an assessment-roll or rolls, the form of which shall be prescribed or approved by the tax com- mission, so classified and arranged with respect to number of parts and number of columns in each part and with such entries and descriptions as shall be suffi- cient to identify each separately assessed parcel or por- tion of real estate with the approximate quantity of the square feet, square rods or acres contained in, such parcel or portion or a statement of the linear dimensions thereof; each special franchise and the names of all per- sons and corporations taxable on personal property, capital stock or capital invested in business and bank stock. Assessments of real property, other than special franchises, shall be carried in a separate part of the roll from the assessments of personal property. 2. The form of assessment-roll prescribed or approved by the tax commission shall provide for the indication 250 TAX LAW PKOVISIOHS § 21 thereon, in appropriate columns, of the name of the village, if in a village, the number of the school district and the name or number of any special district in which a special tax is levied for district purposes, in which each parcel or portion of real property and each special franchise described on such roll is situated or in which each person or corporation subject to taxation for per- sonal property in the tax district pursuant to this chapter, resides, carries on business, has its principal place of business or in which its operations are carried on or where the personal property is located, as the case may be, and shall also provide for the entry of the assessments of real property, special franchises and per- sonal property respectively, made pursuant to this chapter, and of the apportionments made pursuant to section forty of this chapter. 3. In all cities there shall be an additional column in the assessment-roll before the column in which is set down the value of real property, and in such additional column there shall be set down the value of the land exclusive of the buildings thereon. The total assess- ment only can be reviewed. 4. When a tax map has been approved by the tax com- mission, reference to the lot, block and section number or other identification numbers of any parcel on said map shall be deemed a sufficient description of said parcel on the assessment-roll. 5. A separate part shall be provided for the listing of property that is entirely exempt from taxation. If the property is partially exempt it shall be listed with the taxable property. 6. Provision shall also be made thereon for the entry of the amount of tax levied for state, county, city, town, highway or special district purposes, against each parcel or portion of real property, each special franchise and each person or corporation for personal property, to- gether with the date of payment thereof and such other items and details as may be required. 7. The tax commission shall adopt regulations and §§ 21-a, 27 TAX LAW PROVISIOHS 251 rules for the preparation and use of the assessment-roll and shall advise with and instruct boards of assessors and other officers as to their duties in respect thereto. Old section 21, amended by L. 1911, Ch. 315 and L. 1913, Ch. 266. Repealed and new section 21 inserted by Ji. 1914, Ch. 277, amended by L. 1915, Ch. 218; L. 1916, Ch. 333, § 7. § 2i-a. Assessment-rolls in cities. — (Repealed by L. 1916, Ch. 323, § 8.) § 27. Reports of corporations. — The president or other proper officer of every moneyed or stock corporation deriving an income or profit from its capital or other- wise shall, on or before June first, deliver to one of the assessors of the tax district in which the company is liable to be taxed a written . statement in the form pre- scribed by the tax commission specifying: 1. The real property, if any, owned by such company, the tax district in which the same is situated and, unless a railroad corporation, the sums actually paid therefor. 2. The capital stock actually paid in and secured to be paid in, excepting therefrom the sums paid for real property and the amount of such capital stock held by the state and by any incorporated literary or charitable institution, and 3. The tax district in which the principal office of the company is situated or in case it has no principal office, the tax district in which its operations are carred on. Such statement shall be verified by an officer of the corporation making the report to the effect that it is in all respects just and true. If such statement is not made within twenty days after the first day of June, or is in- sufficient, evasive or defective, the assessors may compel the corporation to make a proper statement by man- damus. Amended by L. 1916, Ch. 333, § 14. See § 219-i, Tax Law, post. See 126 N. Y. Supp. 1109. 252 TAX LAW PROVISIONS §§ 28, 29 § 28. Penalty for omission to make statement. — In case of neglect to furnish such statements within thirty days after the time above provided, the company so neglecting shall forfeit to the people of this state for each statement so omitted to be furnished, the sum of two hundred and fifty dollars, and it shall be the duty of the attorney-general to prosecute for such penalty upon information which shall be furnished him by the tax commission. Upon such statement being furnished and the costs of the suit being paid, the tax commission, if it shall be satisfied that such omission was not wilful, may, in its discretion, discontinue such suit. Amended by L. 1916, C!h. 323, } 15. See 9 State Rep. 469. § ag. County clerks to furnsh data respecting cor- porations. — Between the first and fifteenth days of June in each year the county clerk in each county of the state, excepting counties wholly situate within the corporate limits of a city, shall prepare from the records in his office and mail to each of the city and town clerks in his said county, a certified statement containing the names of every stock corporation, whose certificate of incor- poration has been filed with him since his last preceding annual statements to said several city and town clerks, whose principal business office or chief place of business is designated in its certificate of incorporation as being in such city or town or in any village or hamlet therein, together with the fact of such designation and the names and addresses of the directors of each such corporation so far as said county clerk can discover the same from the certificate of incorporation or from the latest cer- tificate of election of directors of such corporation filed in his office. Each city or town clerk receiving such statement shall forthwith file the same in his office and mail a notice of such filing to each of the assessors of his city or town. Amended by L. 1917, Ch. 38. §§ 34, 36-a TAX law provisions 253 § 34. Assessment of omitted property. — The assessors of any tax district shall, upon their own motion, or upon the application of any taxpayer therein, enter in the assessment-roll of the current year any property shown to have been omitted from the assessment-roll of the preceding year, at the valuation of that year, or if not then valued, at such valuation as the assessors shall determine for the preceding year. Assessments of special franchises that were omitted shall be entered at the valuation fixed and equalized by the tax commission. Amended by L. 1914, Ch. 377; L. 1916, Ch. 333. § 36. Notice of completion of assessment-roll. — The assessors shall complete the assessment-roll on or before the first day of August, and make out a copy thereof, to be left with one of their number, and forthwith cause a notice to be conspicuously posted in three or more public places in the tax district, stating that they have completed the assessment-roll, and that a copy thereof has been left with one of their number at a specified place, where it may be seen and examined by any per- son until the third Tuesday of August next following, and that on that day they will meet at a time and place specified in the notice to review their assessments. In any city the notice shall conform to the requirements of the law regulating the time, place and manner of revising assessments in such city. During the time specified in the notice the assessor with whom the roll is left shall submit it to the inspection of every person applying for that purpose. • Amended by L. 1909, CSi. 403; L. 1916, Ch. 323. § 36-a. Completion of assessment-roll; notice to non- residents. — The assessors shall between the first and fifth day of August mail a notice to each person and corporation nonresident of their tax district, who has filed with the city or town clerk, on or before the fifteenth day of June preceding, a written demand therefor. Such 254 TAX LAW PROVISIONS § 37 notice shall specify each parcel or portion of real prop- erty separately assessed to said nonresident person or corporation and the assessed valuation thereof. Upon application made on or before the third Tuesday of August by any nonresident owner of real estate, or by a corporation, having real property in more than one tax district in the county, the assessors shall fix a time subsequent to the third Tuesday in August, but not later than the thirty-first day of August, for a hearing and to review their assessment. Added by L. 1916, Ch. 323; amended by L. 1917, Ch. 489. § 37. Hearing of complaints. — The assessors shall meet at the time and place specified in such notice, and hear and determine all complaints in relation to such assessments brought before them, and for that purpose they may adjourn from time to time. Such complain- ants shall file with the assessors a statement, under oath, specifying the respect in which the assessment complained of is incorrect, which statement must be made by the person assessed or whose property is assessed, or by some person authorized to make such statement, and who has knowledge of the facts stated therein. The assessors may administer oaths, take testi- mony and hear proofs in regard to any such complaint and the assessment to which it relates. If not satisfied that such assessment is erroneous, they may require the person assessed, or his agent or representative, or any other person, to appear before them and be examined concerning such complaint, and to produce any papers relating to such assessment with respect to his prop- erty or his residence for the purpose of taxation. The assessors shall, after said examination, fix the value of the property of the complainant and for that purpose may increase or diminish the assessment thereof. If any such person, or his agent or representative, shall wilfully neglect or refuse to attend and be so examined, or to answer any material question put to him, such per- §§ 38, 39 TAX LAW PEOVISIONS 255 son shall not be entitled to any reduction of his assess- ments. Minutes of the examination of every person examined by th€ assessors upon the hearing of any such complaint shall be taken and filed in the office of the town or city clerk. Amended by L. 1916, Ch. 323. § 38. Correction and verification of tax-roll. — When the assessors or a majority of them shall have completed their roll, they shall severally appear before any officer of their county authorized by law to administer oaths and shall severally make and subscribe before such officer an oath in the following form: "We, the under- signed, do severally depose and swear that we have set down in the foregoing assessment-roll all the real estate situated in the tax district in which we are assessors, according to our best information; and that, with the exception of those cases in which the value of the said real estate has been changed by reason of proof pro- duced before us, and with the exception of those cases in which the value of any special franchise has been fixed by the state tax commission, we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full value thereof; and also, that the said assessment-roll contains a true statement of the aggregate amount of the taxable personal estate of each and every person named in such roll over and above the amount of debts 'due from such persons, respectively, and excluding such stocks as are otherwise taxable, and such other property as is exempt by law from taxation, at the full value thereof, according to our best judgment and belief," which oath shall be written or printed on said roll, signed by the assessors and certified by the officer. Amended by L. 1916, Ch. 323. § 39. Filing of roll and notice thereof. — In cities the assessment-roll when thus finally completed and verified 256 , TAX LAW PROVISIONS § 39 shall be filed on or before September first, in the office of the city clerk, there to remain for fifteen days for public inspection. The assessors shall forthwith cause a notice to be posted conspicuously in at least three public places in the tax district and to be published in one or more newspapers, if any, published in the city, that such assessment-roll has been finally completed and stating that it has been so filed and will be open to public in- spection. At the expiration of such fifteen days, the city clerk shall deliver such roll to a supervisor of the tax district embraced therein. In towns assessors shall pre- pare and verify the assessment-roll, and make and certify one copy thereof. When the assessment-roll shall have been thus finally completed and verified, and the copy thereof certified the assessors shall, on or before the fifteenth day of September, file the said certi- fied copy in the office of the town clerk, to remain for public inspection until delivered by the town clerk to the supervisor of the town as hereinafter provided. The assessors shall forthwith cause a notice to be posted con- spicuously in at least three public places in the tax district and to be published in one or more newspapers, if any, published in the town, that such assessment-roll has been finally completed and stating that such certi- fied copy has been so filed. The original assessment- roll shall on or before the first day of October be deliv- ered by the assessors to a supervisor of the tax district embraced therein. The certified copy of the assessment- roll on file in the town clerk's office, as heretofore pro- vided, shall on the first day of November be delivered by the town clerk to a supervisor of the tax district embraced therein who shall make such corrections as^ may be made in the original roll by the board of super- visors and shall extend the tax thereon so that such roll shall be in all respects a copy of the original roll deliv- ered to the collector and said certified copy shall there- after be returned by the supervisor to the office of the town clerk there to remain as a public record. Not- §§49, 179 TAX LAW PEOvisioiTs 257 withstanding the provisions of this section, the board of supervisors of any county may require additional copies of the assessment-rolls of the towns of such county to be made, and specify by whom such addi- tional copies shall be made, the date when the certified copy of the town assessment-roll shall be filed in the office of the town clerk, and the date when the original assessment-roll shall be delivered to the supervisor of the town. Amended by L. 1916, Ch. 333; L. 1917, Ch. 496; L. 1918, Ch. 279. § 49. Tax on special franchise not to affect other taxes. — The imposition or payment of a tax on a special franchise as provided in this chapter shall not relieve any association, copartnership or corporation from the payment of any organization tax or franchise tax or any other tax otherwise imposed by article nine of this chapter, or by any other provision of law; but tangible property situated in, upon, under or above any street, highway, public place, or public waters, subject to tax as special franchise as described in subdivision six of section two, shall not be taxable except upon the assess- ment made as herein provided by the tax commission. Amended by L. 1916, Ch. 334. § 179. Transfer of the powers and duties of the comp- troller in relation to the assessment or collection of cer- tain taxes. — On and after July first, nineteen hundred and twenty-one, all the powers and duties now conferred or imposed upon the state comptroller in relation to the taxation of corporations under articles nine and nine-a of this chapter, in relation to the taxation of transfers of property, under article ten of this chapter, in relation to the taxation of transfers of stock, under article twelve of this chapter, and in relation to taxation upon and with respect to personal income, under article sixteen of this chapter, shall be transferred to and thereafter shall be exercised and performed by the state tax commission, 17 258 TAX LAW PBOVISIONS § 179 except as powers arid duties under any such article are expressly conferred upon or continued in the state comp- troller by acts of the legislature of nineteen hundred and twenty-one, enacted subsequent to chapter ninety of the laws of nineteen hundred and twenty-one. Added by L. 1915, Ch. 317; amended by L. 1921, Ch. 443. TAX LAW PKOVISIOHS 259 STATE TAXATION ARTICLE 9 Corporation Tax Section 180. Organization tax. 181. License tax on foreign corporations. 182. Franchise tax on corporations. 183. Certain corporations exempt from tax on capital stock. 184. Additional franchise tax on transportation and trans- mission corporations and associations.* 185. Franchise tax on elevated railroads or surface rail- roads not operated by steam.* 18€. Franchise tax on water-works companies, gas com- panies, electric or steam heating, lighting and power companies.* 187. Franchise tax on insurance corporations.* 188. Franchise tax on trust companies.* 189. Franchise tax on savings banks.* 190. Purchase of state bonds; credit to be given.* 191. Tax upon foreign bankers.* 193. Report of corporations. 193. Value of stock to be appraised. 194. Further requirements as to reports of corporations. 195. Powers of comptroller to examine into affairs of cor- porations. 196. Notice of statement of tax; interest. 197. Payment of tax and penalty of failure. 198. Revision and readjustment of accounts by comptroller. 199. Review of determination of comptroller by certiorari. 800. Regulations as to such writ of certiorari. 201. Warrant for the collection of taxes. S02. Information of delinquents. 803. Action for recovery of taxes; forfeiture of charter of delinquent corporation. 204. Reports to be made by the secretary of state. 205. Exemptions from other state taxation. 206. Application of taxes. 207. Limitation of time. •Omitted in this book. 260 TAX LAW PROVISIONS § 180 § i8o. Organization tax. — Every stock corporation in- corporated under any law of this state shall pay to the state treasurer a tax of one-twentieth of one per centum upon the amount of capital stock which the corporation is authorized to have, and a like tax* upon any subse- quent increase. Any corporation issuing shares without designated monetary value shall pay to the state treas- urer a tax of five cents on each share which the cor- poration is authorized to issue and a like tax upon any subsequent increase thereof. Provided, that in no case shall such tax be less than ten dollars. Such tax shall be due and payable upon the incorporation of such cor- poration or upon the increase of its capital stock. Ex- cept in the case of a railroad corporation neither the secretary of state nor county clerk shall file any certifi- cate of incorporation or article of association, or give any certificate to any such corporation or association until he is furnished a receipt for such tax from the state treasurer, and no stock corporation shall have or exercise any corporate franchise or powers, or carry on business in this state until such tax shall have been paid. And in case of a decrease of capital stock, upon which the tax required by law has been paid, and a subsequent increase thereof, a tax shall be paid only upon so much of such increase as exceeds the amount of capital stock upon which a tax has been before paid. In case of the consolidation of existing corporations into a corporation, such new corporation shall be required to pay the tax hereinbefore provided for only upon the amount pf its capital stock in excess of the aggregate amount of capital stock of said corporations. This sec- tion shall not apply to state and national banks or to building, mutual loan, accumulating fund and co-opera- tive associations. A railroad corporation need not pay such tax at the time of filing its certificate of incorpora- tion, but shall pay the same before the public service commission shall grant a certificate, as required by the railroad law, authorizing the construction of the road as § 181 TAX LAW PROVISIONS 261 proposed in its articles of association, and such certifi- cate shall not be granted by the public service commis- sion until it is furnished with a receipt for such tax from the state treasurer. If the board of railroad com- missioners or public service commission shall have here- tofore granted, or the public service commission shall hereafter grant, such certificate and upon an appeal from the determination of such board of railroad com- missioners or public service commission, such certificate has been or may hereafter be denied the state treasurer shall refund the amount of tax so paid to the railroad corporation or corporations by whioh such tax was paid, upon proof of payment being presented and appropria- tion being made therefor. Amended by L. 1910, Ch. 472; L. 1911, Ch. 91; L. 1915, Ch. 317; L. 1917, Ch. 493; L. 1921, Ch. 705. See § 21, Stock Corporation Law, ante. § i8i. License tax on foreign corporations. — Every foreign corporation, except banking corporations, fire, marine, casualty and life insurance companies, co-opera- tive fraternal insurance companies, and building and loan associations, doing business in this state, shall pay to the state treasurer, for the use of the state, a license fee of one-eighth of one per centum for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this state, to be computed upon the basis of the capital stock employed by it within this state, during the first year of carrying on its business in this state; which first pay- ment shall not be less than ten dollars; and if any year thereafter any such corporation shall employ more than eight thousand dollars of its capital stock within this state on which a license fee has not been paid then a license fee at the rate of one-eighth of one per centum shall be due and payable upon any such increase. The measure of the amount of capital stock employed in this state shall be such a portion of the issued capital stock 262 TAX LAW PBOVISIONS § 182 as the gross assets employed in any business within this state bear to the gross assets wherever employed in business. The issued capital stock of any corporation issuing shares without designated monetary value shall pay for the use of the state a license fee of six cents on each such share employed in this state, as hereinbefore provided. For purposes of taxation, the capital of a cor- poration invested in the stock of another corporation shall be deemed to be assets located where the physical property represented by such stock is located. The amount of capital upon which such license fees shall be paid shall be fixed by the state tax commission, which shall have the same authority to examine the books and records in this state of such foreign corporations, and the employees thereof as it has in the case of domestic corporations, and the comptroller, or on and after July first, nineteen hundred and twenty-one, the state tax com- mission, shall have the same power to issue a warrant for the collection of such license fees, as now exists with regard to domestic corporations. No action shall be maintained or recovery had in any of the courts in this state by such foreign corporation after thirteen months from the time of beginning such business within the state, without obtaining a receipt for the payment of the license fee upon the capital stock employed by it within this state during the first year of carrying on its business in this state. Amended by L. 1910, Ch. 340; L. 1915, C!h.-317; L. 1917, Ch. 490; L. 1931, Ch. 705. See 79 Misc. 422. § 182. Franchise tax on corporations. — For the privi- lege of exercfsing its corporate franchises in this state every domestic corporation, joint-stock company or asso- ciation, and for the privilege of doing business in this state, every foreign corporation, joint-stock company or association, shall pay to the state treasurer annually, in advance, an annual tax to be computed upon the basis § 182 TAX LAW PBOVISIONS 263 of the amount of its capital stock, employed during the preceding year within this state, and upon each dollar of such amount. The measure of the amount of capital stock employed in this state shall be such a portion of the issued capital stock as the gross assets employed in any business within this state bear to the gross assets wherever employed in business. For purposes of taxa- tion, the capital of a corporation invested in the stock of another corporation shall be deemed to be assets located where the physical property represented by such stock is located. If the dividends upon the capital stock amount to six, or more than six per centum upon the par value of the capital stock, during any year ending with the thirty-first day of October, the tax shall be at the rate of one-quarter of a mill for each one per centum of dividends made or declared upon the par value of the capital stock during said year. If such dividend or divi- dends amount to less than six per centum on the par value of the capital stock, and (i) The assets do not exceed the liabilities, exclusive of capital stock, or (2) The average price at which such stock sold during said year did not equal or exceed its par value, or (3) If no dividend was declared. Then each dollar"'of the amount of capital stock em- ployed in this state, determined as hereinbefore pro- vided, shall be taxed at the rate of three-lourths of one mill. If such dividend or dividends amount to less than six per centum on the par value of the capital stock, and (i) The assets exceed the liabilities, exclusive of capi- tal stock, by an amount equal to or greater than the par value of the capital stock, or (2) The average price at which such stock sold during said year is equal to or greater than the par value, Then the amount of capital stock, determined as here- inbefore provided to be employed in this state, shall be taxed at the rate of one and one-half mills on each dollar of the valuation of the capital stock employed in this state, but such valuation shall not be less than 264 TAX LAW PKOVISIOSS § 182 (i) The par value of such stock, (2) The difference between the assets and liabilities, exclusive of capital stock, (3) The average price at which such stock sold during said year. If such corporation, joint-stock company or associa- tion shall have more than one kind of capital stock, and upon one of such kinds of stock a dividend or dividends amounting to six or more than six per centum upon the par value thereon, has been made or declared, and upon the other no dividend has been made or declared, or the dividend or dividends made or declared thereon amount to less than six per centum upon the par value thereof, then the tax shall be at the rate of one-quarter of a mill for each one per centum of dividends made or declared upon the capital stock upon the par value of which the dividend or dividends made or declared amount to six or more than six per centum, and in addition thereto a tax shall be charged upon the capital stock (i) Upon which no dividend was made or declared, or ^2) Upon which the dividend or dividends made or de- clared did not amount to six per centum upon the par value. At the rate as hereinbefore provided for the taxation of capital stock upon which no dividend was made or declared, or upon which the dividend or dividends made or declared did not amount to six per centum on the par value. All corporations not taxable under the preceding para- graphs of this section shall be taxed in an amount not less than would be produced by an assessment of one and one-half mills on each one dollar of the actual value of its capital stock, determined to be employed in this state as hereinbefore provided, or one and one-half mills upon each dollar of such capital stock at the average price at which said stock sold during the said year. Amended by L. 1916, Ch. 333. See § 21, Stock Corporation Law, ante, and § 219-j, Tax Law, post. § 183 TAX LAW PKOVISIONS 265 See 304 N. Y. 514; 139 N. Y. 558; 105 N. Y. 76; 131 N. Y. 64; 91 Hun, 158; 148 N. Y. 690; 150 N. Y. 46; 153 N. Y. 59; 154 N. Y. 1, 101; 156 N. Y. 585; 157 N. Y. 70; 159 N. Y. 70; 158 App. Div. 112; 157 App. Div. 3; 155 App. Div. 842; 55 App. Div. 265; 49 App. Div. 108; 47 App. Div. 126. § 183. Certain corporations exempt from tax on capital stock. — Banks, savings banks, institutions for savings, title guaranty, insurance or surety corporations, every trust company incorporated, organized or formed, under, by or pursuant to a law of this state, and any company authorized to do a trust company business, solely or in connection with any other business, under a general or special law of this state, laundering corporations, manu- facturing corporations to the extent only of the capital actually employed in this state in manufacturing, and in the sale of the product of such manufacturing, mining corporations wholly engaged in mining ores within this state, agricultural and horticultural societies or asso- ciations, and corporations, joint-stock companies or asso- ciations owning or operating elevated railroads or sur- face railroads not operated by steam, or formed for supplying water or gas for electric or steam heating, lighting or power purposes, and liable to a tax under sections one hundred and eighty-five and one hundred and eighty-six of this chapter, shall be exempt from the payment of the taxes prescribed by section one hundred and eighty-two of this chapter. But such a laundering, manufacturing or mining corporation shall not be ex- empted from the payment of such tax, unless at least forty per centum of the capital stock of such corporation is invested in property in this state and used by it in its laundering, manufacturing or mining business in this state. See 158 N. Y. 162, 168; 155 N. Y. 1, 408; 145 K Y. 587; 144 N. Y. 160; 129 N. Y. 543; 92 N. Y. 487; 157 App. Div. 2. Sections 184-191, inclusive, are omitted, for the reason that they do not apply to business corporations. 266 TAX LAW PROVISIONS § 192 § 192. Reports of corporations. — ^Corporations liable to pay a tax under this article shall report as follows : 1. Corporations paying franchise tax. Every corpora- tion, association or joint-stoek company liable to pay a tax under section one hundred and eig4ity-two of this chapter shall, between the first day of November and the fifteenth day of December, in each year, make a written report to the tax commission of its condition at the close of its business on October thirty-first preced- ing, stating the amount of its authorized capital stock, the amount of stock paid in, the date and rate per centum of each dividend declared by it during the year ending with such day, the entire amount of the capital of such corporation, and the capital employed by it in this state during such year. Upon written application the state tax commission may, in its discretion, extend the time in which to make report, but not beyond the fifteenth day of February succeeding. 2. Transportation and transmission corporations. Every transportation or transmission corporation, joint- stock company or association liable to pay an additional tax under section one hundred and eighty-four of this chapter, shall also, on or before August first in each year, make a written report to the tax commission of its con- dition at the close of its business on June thirtieth pre- ceding, stating the amount of its gross earnings from all sources and the amount of its gross earnings from its transportation or transmission business originating and terminating within this state. 3. Elevated and surface railroad corporations. Every corporation, joint-stock company or association liable to pay a tax under section one hundred and eighty-five of this chapter shal?, on or before August first of each year, make a written report to the tax commission of its con- dition at the close of its business on June thirtieth pre- ceding, stating the amount of its gross earnings from business done in this state, the amount of dividends of every nature declared or paid during the year ending § 193 TAX LAW PROVISIONS 267 June thirtieth, the authorized capital of the company and the amount of capital stock actually issued and out- standing. 4. Water-works, gas, electric, steam-heating, lighting and power corporations. Every corporation, joint-stock company or association liable to pay a tax under section one hundred and eighty-six of this chapter, shall, on or before December first of each year, make a written re- port to the tax commission of its condition at the close of its business on October thirty-first preceding, stating the amount of its gross earnings from business done in this state, the amount of dividends of every nature de- clared or paid during the year ending with October thirty-first, the authorized capital of the company and the amount of capital stock actually, issued and out- standing. Amended by L. 1915, Ch. 317; L. 1917, Ch. 80, 707. See § 219-j, Tax Law, post. Subdivisions 5-9, inclusive, relate to insurance corporations, foreign bankers, trust companies, savings banks and investment companies, respectively. See 155 App. Div. 844. § 193. Value of stock to be appraised. — If the dividend or dividends amount to less than six per centum on the par value of the capital stock, or no dividend is declared, the president, treasurer or secretary of the company liable to pay a tax under the provisions of section one hundred and eighty-two of this chapter, shall, under oath, between the first and fifteenth days of November in each year, estimate and appraise the capital stock of such company at its actual value. And shall forward the same to the tax commission with the report provided for in the last section. If the tax commission is not satisfied with the valuation so made and returned it is authorized and empowered to make a valuation thereof, and settle an account upon the valua- 268 TAX LAW PKOVISIOKS §§ 194, 195 tion so made by it, and the taxes, penalties and interest to be paid the state. Amended by L. 1915, Ch. 317. § 194. Further requirements as to reports of corpora- tions. — Every report required by this article shall have annexed thereto the affidavit of the president, vice-presi- dent, secretary or treasurer of the corporation, associa- tion or joint-stock company or of the person or one of the persons, or the members of the partnership making the same, to the effect that the statements contained therein are true. Such reports shall contain any other data, information or matter which the tax commission may require to be included therein, and it may prescribe 1 the form in which such reports shall be made and the form of oath thereto. When so prescribed such forms shall be used in making the report. The commission may require at any time a further or supplemental re- port under this article, which shall contain information and data upon such matters as the commission may specify. Amended by L. 1915, Ch. 317. See 148 N. Y. 690. § 195. Powers of tax commission to examine into affairs of corporations. — In case any report required by any of the preceding sections of this article shall be un- satisfactory to the commission, or if any such report is not made as herein required, the commission is author- ized to make an estimate of the dividends paid by such corporation and the value of the capital stock employed by it, from any »uch report or from any other data, and to order and state an account according to the estimate and value so made by it for the taxes, percentage and interest due the state from such corporation, association, joint-stock company, person or partnership. The com- mission shall also have power to examine or cause to be examined, in case of a failure to report or in case the §§ 196, 197 TAX LAW PROVISIONS 269 report is unsatisfactory to it, the books and records of any such corporation, joint-stock association, company, foreign banker, person or partnership, and may hear testimony and take proofs material for its information, and may appoint a commissioner by a written appoint- ment under its ofiScial seal for that purpose. Every com- missioner so appointed shall be authorized to make such examination and take such testimony and hear such proofs and report the proofs and testimony so taken and the result of his examination so made and the facts found by him to the commission. The commission shall, therefrom, or from any other data which shall be satis- factory to it, order and state an account for the tax due the state, together with the expenses of such examina- tion and the taking of such testimony and proofs. Such expenses shall be fixed and adjusted by the commission. Amended by L. 1915, CSi. 317. See L. 1896, Ch. 908. § 196. Notiee of statement of tax; interest. — Upon auditing and stating every account for taxes under this article, the commission shall forthwith send notice thereof in writing to the person, partnership, company, association or corporation against whom the same is made, which notice may be mailed to the post-office address of such person, partnership, association, com- pany or corporation. All accounts so audited and stated shall bear interest upon the total amount found due thereon to the state, for taxes, percentage, interest and other charges, from the expiration of thirty days after sending such notice until payment thereof shall be made and shall be added thereto and collected therewith by the tax commission. Amended by L. 1915, Ch. 317; L. 1921, Ch. 443. § 197. Payment of tax and penalty for failure. — A tax imposed by section one hundred and eighty-two or one hundred and eighty-six of this chapter shall be due and 270 TAX LAW PROVISIONS § 197 payable into the state treasury on or before the fifteenth day of January in each year. A tax imposed by section one hundred and eighty-four of this chapter on a trans- portation or transmission corporation, or by section one hundred and eighty-five, on elevated railroads or surface railroads not operated by steam, shall be due and pay- able into the state treasury on or before the first day of August in each year. A tax imposed by section one hundred and eighty-seven of this chapter on an insur- ance corporation shall be due and payable into the state treasury on or before the first day of June in each year. A tax imposed by section one hundred and eighty-eight, one hundred and eighty-eight-a or one hundred and eighty-nine shall be due and payable into the state treasury on or before the first day of September in each year. A tax imposed by section one hundred and ninety- one of this chapter on a foreign banker shall be due and payable into the state treasury on or before February first in each year. If such tax in any case is not paid within thirty days after the same becomes due, or if the report of any such corporation is not made within the time required by this article, the corporation, associa- tion, joint-stock company, person or partnership, liable to pay the tax, shall pay into the state treasury, in addi- tion to the amount of such tax, a sum equal to five per centum thereof, and one per centum additional for each month the tax remains unpaid, which sum shall be added to the tax and paid or collected therewith. Every cor- poration, association, joint-stock company, person or partnership failing to make the annual report required by this article, or failing to make any special report re- quired by the commission, within any reasonable time to be specified %y the commission, shall forfeit to the people of the state the sum of one hundred dollars for every such failure, and the additional sum of ten dollars for each day that such failure continues. Such tax shall be a lien upon and bind all the real and personal prop- erty of the corporation, joint-stock company or associa- § 198 TAX LAW PROVISIONS 271 tion liable to pay the same from the time when it is payable until the same is paid in full. Amended by L. 1915, Ch. 317; L. 1917, Ch. 707. See 204 N. Y. 514; 154 App. Div. 909. § 198. Revision and readjustment of accounts by tax commission. — If an application be filed with the com- mission by the party against whom the account is stated or by the attorney-general within one year from the time any such account shall have been audited and stated, the commission may at any tiine, upon notice thereof sent to the person, partnership, company, association or corporation against whom it is stated, revise and re- adjust such account and if it shall be made to appear upon any such application, by evidence submitted to it or otherwise, that any such account included taxes or other charges which could not have been lawfully de- manded, or that payment has been illegally made or exacted of any such account, the commission shall re- settle the same according to law and the facts, and charge or credit, as the case may require, the difference, if any, resulting from such revision or resettlement upon the accounts for taxes of or against any such person, partnership, company, association or corporation. Such credit, whether allowed before or after the passage of this chapter may be, by the person, partnership, com- pany, association or corporation in whose favor it is allowed, assigned to a person, partnership, company, association or corporation liable to pay taxes under article nine of this chapter, and the assignee of the whole or any part of such credit on filing with the commission such assignment shall thereupon be entitled to credit on the books of the commission for the amount thereof on the current account for taxes of such assignee in the same way and with the same effect as though the credit had originally been allowed in favor of such assignee. The commission shall forthwith send written notice of its determination upon such application to the applicant. 272 TAX LAW PROVISIONS §§ 199, 200 and to the attorney-general, which notice may be sent by mail to its post-office address. Amended by L. 1915, Ch. 317. § 199. Review of determination of tax commission by certiorari. — The determination of the commission upon any application made to it by any person, partnership, company, association or corporation for a revision and resettlement of any account, as prescribed in this article, may be reviewed both upon the law and the "facts upon certiorari by the supreme court at the instance of any person, partnership, company, association or corpora- tion affected thereby, and in the name and on behalf of the people of the state. For the purpose of such review the commission shall return, on such certiorari, the ac- counts and all the evidence before it on such application, and all the papers and proofs upon the original statement of such account and all proceedings thereon. If the original or resettled accounts shall be found erroneous or illegal, either in point of law or of fact, by the supreme court, upon any such review, the accounts reviewed shall then be corrected and restated, and from any determina- tion of the supreme court upon any such review an ap- peal to the court of appeals may be taken by either party. Amended by L. 1915, CSi. 317. § 200. Regulations as to such writ of certiorari. — No certiorari to review any audit and statement of an ac- count of any determination by the commission" under this article shall be granted unless notice of application therefor is made within thirty days after the service of the notice of such determination. Eight days' notice shall be given to the commission of the application for such writ. The full amount of the taxes, percentage, interest and other charges audited and stated in such account must be deposited with the state treasurer be- fore making the application and an undertaking filed § 201 TAX LAW PROVISIONS 273 with the commission, in such amount and with such sureties as a justice of the supreme court shall approve, to the effect that if such writ is dismissed or the deter- mination of the commission affirmed, the applicant for the writ will pay all costs and charges which may accrue against him or it in the prosecution of the writ, includ- ing costs of all appeals. Amended by L. 1915, Ch. 317. • See 33 Misc. 569. § 201. Warrant for the collection of taxes. — ^After the expiration of thirty days from the sending by the com- mission of a notice of a statement of an account as pro- vided in this article, unless the amount of such account shall have been paid or deposited with the state treas- urer, if an appeal or other proceedings have been taken to review the same, and the undertaking given as pro- vided in this article, the tax commission may issue a warrant under its official seal, directed to the sheriff of any county of the state, commanding him to levy upon and sell the real and personal property of the persons, partnership, company, association or corporation against which such account is stated, found within his county for the payment of the amount thereof with interest thereon and costs of executing the warrant, and to re- turn such warrant to the tax commission and pay to the state treasurer the money collected by virtue thereof, by a time to be therein specified, not less than sixty days from the date of the warrant. Such warrant shall be a lien upon and shall bind the real and personal property of the person, partnership, company, association or cor- poration against which it is issued, from the time an actual levy shall be made by virtue thereof. The sheriff to whom any such warrant shall be directed shall pro- ceed upon the same in all respects, with like effect, and in the same manner as prescribed by law in respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees 18 274 TAX LAW PROVISIONS §§ 205S, 203 for his services in executing the warrant, to be collected in the same manner. Amended by L. 1915, Ch. 317; L. 1921, Ch. 443. § 202. Information of delinquents. — It shall be the duty of any person having knowledge of the evasion of taxa- tion under this article by any corporation, association, joint-stock company, partnership or person liable to taxa- tion thereunder, for any omission on their part to make the reports required by this article, to make a written report thereof to the tax commission, with such infor- mation as may be in his possession as may lead to the recovery of any taxes due the state therefrom. If, in its opinion, the interests of the state require it, the tax commission may employ such person to assist in the collection and preparation of evidence and in the prose- cution and trial of actions for such taxes, and so much of the same, not exceeding ten per centum thereof, as may be collected from any such delinquent corporation, association, company, partnership or person, by reason of such report and such services, as shall have been agreed upon between such person and the tax commis- sion or attorney-general as a compensation therefor, shall be paid to such person, and nothing shall be paid to such person for such report or services unless there shall be a recovery of taxes by reason thereof. Amended by L. 1921, Oh. 443. § 203. Action for recovery of taxes ; forfeiture of char- ter of delinquent corporations. — An action may be brought by the attorney-general, at the instance of the tax commission,*In the name of the state, to recover the amount of any account audited and stated by the com- mission under the provisions of this article. If any such account shall remain unpaid at the expiration of one year after notice of the statement thereof has been sent as required by this article, and the tax commission is §§ 204,205 TAX LAW PROVISIONS 275 satisfied that the failure to pay the same is intentional, it shall so report to the attorney-general, who shall im- mediately bring an action, in the name of the people of the state, for the forfeiture of the franchise of any cor- poration, joint-stock company or association failing to make such payments, and if it is found that such failure was intentional, judgment shall be rendered in such ac- tion for the forfeiture of its franchise and for its dissolu- tion, and thereafter such franchise shall be annulled. Amended by L. 1915, Ch. 317; L. 1921, Ch. 443. § 204. Reports to be made by the secretary of state. — The secretary of state shall transmit on the first day of each month to the tax commission a report of the stock corporations whose certificates of incorporation are filed, or of the foreign stock corporations to whom a certificate of authority has been issued to do business in this state, during the preceding month. Such report shall state the name of the corporation, its place of business, the amount of its capital stock, its purposes or objects, the names and places of residence of its directors, and, if a foreign corporation, its place of business within the state. The commission may prescribe the forms and furnish the blanks for such reports. The secretary of state shall make like reports to the commission whenever required by it relating to any such corporations whose cer- tificates have been filed or to whom a certificate of au- thority has been issued prior to the time when this article takes effect, and during any period of time specified by the commission in its request for such report. Amended by L. 1915, Ch. 317. § 205. Exemptions from other state taxation. — The personal property of every corporation, company, asso- ciation or partnership, taxable under this article, other than for an organization tax, shall be exempt from assessment and taxation upon its personal property for 276 TAX LAW PROVISIONS §§ 206,207 state purposes, if all taxes due and payable under this article have been paid thereby. The personal property of every corporation taxable under section one hundred and eighty-eight of this article, or under section one hundred and eighty-eight-a of this article, other than for an organization tax, and as provided in the banking law, shall be exempt from assessment and taxation for all other purposes. The personal property of a private or individual banker, actually employed in his business as such banker, shall be exempt from taxation for state purposes, if such private or individual banker shall have paid all taxes due and payable under this article. Such corporation and private or individual banker shall in no other respect be relieved from assessment and taxa- tion by reason of the provisions of this article. The owner and holder of stock in an incorporated trust com- pany liable to taxation under the provisions of this chap- ter shall not be taxed as an individual for such stock. Personal property exempted from taxation by this sec- tion shall not include shares of stock of banks and bank- ing associations taxable under the provisions of sections twenty-four to twenty-four-g, both inclusive, of this chapter. Amended by L. 1917, Ch. 39, 707. § 2o6. Application of taxes. — The taxes imposed by this article and the revenues thereof shall be applicable to the general fund of the treasury and to the payment of all claims and demands which are a lawful charge thereon. § 207. Limitajjon of time.— The provisions of the code of civil procedure relative to the limitation of time of enforcing a civil remedy shall not apply to any proceed- ing or action taken to levy, appraise, assess, determine or enforce the collection of any tax or penalty prescribed by this article, and this section shall be construed as having been in effect as of date of the original enactment § 207 TAX LAW PKOVISIONS 277 of the corporation tax law, provided, however, that as to real estate in the hands of persons who are owners thereof who would be purchasers in good faith but for such tax or penalty, and as to the lien on real estate of mortgages held by persons who would be holders thereof in good faith but for such tax or penalty, all taxes and penalties which have prior to April first, nineteen hun- dred and seventeen become due and payable pursuant to this article, and which have not been referred to the attorney-general pursuant to section two hundred and three of this chapter, shall cease to be a lien on such real estate as against such purchasers or holders, after the expiration of ten years from the time when such tax became due and payable. Amended by L. 1917, Ch. 410. 278 TAX LAW PROVISIONS § 208 ARTICLE 9-A Franchise Tax on Business Corporations * Section 208. Definitions. 309. Franchise tax on corporations based on net income. 210. Corporations exempted from article. 311. Reports of corporations to tax commission. 312. Reports by corporation on basis of fiscal year. 213. Reports to be sworn to; forms. 314. Computation of tax. 314a. Taxation of corporations acquiring assets or fran- chises of other corporations. 215. Rate of tax. 316. Penalty for failure to report. 317. Powers of tax commission. 218. Revision and readjustment of accounts by tax com- mission. 219. Review of determination of tax commission by cer- tiorari. 319a. Audit and statement of tax. 319b. Notice of tax. 219c. When tax payable. 219d. Corrections and changes. 219e. Warrant for the collection of taxes. 219f. Action for recovery of taxes; forfeiture of charter by delinquent corporations. 219g. Deposit of revenues collected. 219h. Disposition of revenues collected. 219i. Secrecy required of officials; penalty for violation. 319j. Exemption from certain other taxation. 319k. Limitation of time. 2191. Personal property defined. § 2o8. Definitions. — As used in this article: i. The term " corporation " includes a joint-stock company or association ; « 2. The words " tangible personal property " shall be taken to mean corporeal personal property, such as ma- chinery, tools, implements, goods, wares and merchan- * Title changed by L. 1919, Ch. 628, § 1. Section 15 of Chapter 628 provides that the act shall not affect any pending action or proceeding. § 209 TAX LAW PROVISIONS 279 disc, and shall not be taken to mean money, deposits in bank, shares of stock, bonds, notes, credits or evidences of an interest in property and evidences of debt; 3. The term " entire net income " means the total net income before any deductions have been made for taxes paid or to be paid to the government of the United States on either profits or net income or for any losses sustained by the corporation in other fiscal or calendar years whether deducted by the government of the United States or not. Added by L. 1917, Ch. 726; amended by L. 1918, Ch. 417; L. 1919, Ch. 628. § 209. Franchise tax on corporations based on net in- come. — For the privilege of exercising its franchise in this state in a corporate or organized capacity every domestic corporation, and for the privilege of doing business in this state, every foreign corporation, except corporations specified in the next section, shall annually pay in advance for the year beginning November first next succeeding the first day of July in each and every year an annual franchise tax, to be computed by the tax commission upon the basis of its entire net income for its fiscal or the calendar year next preceding, as herein- after provided, which entire net income is presumably the same as the entire net income upon which such cor- poration is required to pay a tax to the United States, or as otherwise provided by section two hundred and fourteen of the tax law, except that the entire net in- come of a corporation not organized under the laWs of any state within the United States which shall be taken as the basis of computation by the tax commission shall be the entire net income in fact rather than the amount earned in the United States or the amount returned to the United States treasury department. Added by L. 1917, C!h. 726; amended by L. 1918, Ch. 276; L. 1919, Ch. 628; L. 1920, Ch. 640. 280 TAX LAW PROVISIONS § 211 § 210. Corporations exempted from article. — Corpora- tions wholly engaged in the purchase and sale of, and holding title to, real estate for themselves, corporations whose sole business consists of holding the stocks of other corporations for the purpose of .controlling the management and affairs of such other corporations, ex- cept such as are specifically subject to report under the provisions of subdivision nine of section two hundred and eleven of the tax law, and corporations liable to tax under sections one hundred and eighty-four to one hun- dred and eighty-nine inclusive of this chapter, banks, savings banks, institutions for savings, title guaranty, insurance or surety corporations shall be exempt from the payment of the taxes prescribed by this article. Added by L. 1917, Ch. 736; amended by L. 1918, Ch. 417; L. 1930, Ch. 640. § 211. Reports of corporations to tax commission. — Every corporation taxable under this article as well as foreign corporations having officers, agents or represen- tatives within the state shall annually on or before July first, or within thirty days after the making of its report of entire net income to the United States treasury de- partment for any fiscal or calendar year, preceding said first day of July, transmit to the tax commission a re- port in the form prescribed by the tax commission, specifying: i. The name and location of the principal place of business of such corporation, the state under the laws of which organized, and the date thereof; the amount of its issued capital stock and the kind of busi- ness transacted. Any corporation not organized under the laws of any state within the United States shall state the facts in relation to its entire net income wherever earned and as though organized under the laws of this state, and instead of stating its income a^ returned to the United States treasury department. 2. The amount of its entire net income for its preced- ing fiscal or the preceding calendar year as shown in § 211 TAX LAW PROVISIONS 281 the last return of annual net income made by it to the United States treasury department, except as provided in subdivision one of this section. If the corporation shall claim that the return made to the United States treasury department was inaccurate, the amount claimed by it to be the net income for such period shall be speci- fied. If any deduction has been allowed for losses sus- tained by the corporation in prior years the amount so allowed and deducted shall be specified. 3. The average monthly value for the fiscal or calen- dar year of its real property and tangible personal prop- erty in each city, village or portion of a town outside of a village within the state, and the average monthly value of all its real property and tangible personal prop- erty wherever located. 4. The average monthly value for the fiscal or calendar year of bills and accounts receivable arising from (a) personal property sold by the corporation from mer- chandise manufactured by it within this state; (b) per- sonal property owned by the corporation and not manu- factured by it within this state but sold by it or its agents and located within the state at the time of the receipt of the order; (c) the purchase or sale of, or trading in, goods, wares or merchandise not located at any place at which the corporation conducted a permanent or con- tinuous business without the state, and where the bills and accounts receivable arose from orders received or accepted by any officer or agent, or at any place of business, in this state; and (d) services performed by any officer, agent or representative of the corporation connected with, sent from, or reporting, either directly or indirectly, to any officer located in this state or at any office located, owned, rented or occupied in this state. Also the average total monthly value for the fiscal or calendar year of bills and accounts receivable arising from the manufacture by it of personal property or the purchase or sale of, or trading in, personal property, or from services performed by the corporation, its offi- 282 TAX LAW PKOVISIONS § 211 cers or agents, excluding those arising in any way from advances or loans. 5. The average total value for the fiscal or calendar year of the stock of other corporations owned by the corporation, and the proportion of the average value of the stock of such other corporations within the state of New York, as allocated pursuant to section two hundred and fourteen of this chapter. 6. If the corporation has no real or tangible personal property within the state, the city, village or portion of a town outside of a village in the state in which is lo- cated the office in which its principal financial concerns within the state are transacted. 7. Such other facts as the tax commission may require for the purpose of making any computation required by this article, or for the purpose of comparison with former reports to determine whether or not such reports were erroneous or fraudulent. 8. Any corporation taxable hereunder upon its entire net income may omit from its report the statements re- quired by subdivisions four and five by incorporating in its report a consent to be taxed upon its entire net in- come. Corporations having no net income shall, how- ever, complete the segregation of assets in every case. 9. Any corporation owning or controlling, either di- rectly or indirectly, substantially all of the capital stock of another corporation, or of other corporations, liable to report under this article, may be required to make a consolidated report showing the combined entire net in- come, such assets of the corporations as are required for the purposes of this article, and such other informa- tion as the tajf commission may require, but excluding intercorporate stockholdings and intercorporate ac- counts. The tax commission may permit the filing of a com- bined report where substantially all the capital stock of two or more corporations liable to taxation under this article is owned by the same interests. The tax com- § 212 TAX LAW PROVISIONS 283 mission may impose the tax provided by this article as though the combined entire net income and segregated assets were those of one corporation, or may, in such other manner as it shall determine, equitably adjust the tax. Where any corporation liable to taxation under this article conducts the business whether under agreement or otherwise in such manner as either directly or in- directly to benefit the members or stockholders of the corporation, or any of them, or any person or persons, directly or indirectly interested in such business by sell- ing its products or the goods or commodities in which it deals at less than a fair price which might be obtained therefor, or where such a corporation, a substantial por- tion of whose capital stock is owned either directly or indirectly by another corporation, acquires and disposes of the products of the corporation so owning the sub- stantial portion of its capital stock in such a manner as to create a loss or improper net income, the tax commis- sion may require such facts as it deems necessary for the proper computation provided by this article, and may for the purpose of the act determine the amount which shall be deemed to be the entire net income of the business of such corporation for the calendar or fiscal year, and in determining such entire net income the tax commission shall have regard to the fair profits which, but for any agreement, arrangement or under- standing, might be or could have been obtained from dealing in such products, goods or commodities. Added by L. 1917, Cli. 736; amended by L. 1918, Ch. 417; L. 1919, Ch. 638, § 4; L. 19a0, Ch. 640. Subdivision 3 was amended by L. 1918, Ch. 376, § 3. § 212. Reports by corporation on basis of fiscal year. — A corporation which reports to the United States treasury department on the basis of its fiscal year, may report to the tax commission upon the same basis, ex- cept as provided in section 214-a of this chapter. Added by L. 1917, Ch. 736; amended by L. 1919, Ch. 638. 284 TAX LAW PBOVISIONS §§ 213,214 § 213. Reports to be sworn to; forms. — Every report required by this article shall have annexed thereto the affidavit of the president, vice-president, secretary or treasurer of the corporation to the effect that the state- ments contained therein are true. Blank forms of report shall be furnished by the tax commission, on applica- tion, but failure to secure such a blank shall not release any corporation from the obligation of making a report herein required. The commission may require a further or supplemental report under this article to contain further information and data necessary for the com- putation of the tax herein provided. Added by L. 1917, Ch. 736. § 214. Computation of tax. — If the entire business of the • corporation be transacted within the state, the tax imposed by this article, if imposed upon the entire net income, shall be based upon the entire net income of such corporation for such fiscal or calendar year as de- fined in section two hundred and eight of this chapter, subject, however, to any correction thereof for fraud, evasion or error, as ascertained by the state tax com- mission. If the entire business of such corporation be not transacted within the state, the tax imposed by this article shall be based upon a proportion of such entire net income, to be determined in accordance with the following rules : The proportion of the entire net income of the corporation upon which the tax under this article shall be based, shall be such portion of the entire net income as the aggregate of 1. The average monthly value of the real property and tangible persdiial property within the state. 2. The average monthly value of bills and accounts receivable arising from (a) personal property sold by the corporation from merchandise manufactured by it within the state; (b) personal property owned by the corporation and not manufactured by it within this state but sold by it or its agents and located within the state § 214 TAX LAW PROVISIONS 285 at the time of the receipt of the order ; (c) the purchase or sale of, or trading in, goods, wares or merchandise not located at any place at which the corporation con- ducted a permanent or continuous business without the state, and where the bills and accounts receivable arose from orders received or accepted by any officer or agent, or at any place of business, in this state ; and (d) ser- vices performed by any officer, agent or representative of the corporation connected with, sent from, or report- ing, either directly or indirectly, to any officer located in this state or at any office located, owned, rented or occupied in this state. 3. The proportion of the average value of the stocks of other corporations owned by the corporation, allocated to the state as provided by this section, bears to the aggregate of 4. The average monthly value of all the real property and tangible personal property of the corporation, wherever located. 5. The average total monthly value for the fiscal or calendar year of bills and accounts receivable arising from (a) personal property sold by the corporation from merchandise manufactured by it within and without this state; and (b) the purchase, or sale of, or trading in, personal property, or from services performed by the corporation, its officers or agents, excluding those aris- ing in any way from advances or loans. 6. The average total value of stocks of other corpora- tions owned by the corporation. 7. In case any report is made as provided by subdivi- sion nine of section two hundred and eleven of the tax law, the tax commission may assess the tax against either of the corporations whose assets or net income are in- volved in the report and upon the basis of the combined entire net income and the combined segregated assets of the corporation and upon such other information as it may possess, or may adjust the tax in such other manner as it shall determine to be equitable. 286 TAX LAW PROVISIONS § 214-a Real property ^nd tangible personal property shall be taken at its actual value where located. The value of share stock of another corporation owned by a corpora- tion liable hereunder shall for purposes of allocation of assets be apportioned in and out of the state in accord- ance with the value of the physical property in and out of the state representing such share stock. It is further provided that every domestic corporation exercising its franchise in this state and every foreign corporation doing business in this state, other than those exempted by section two hundred and ten of this chap- ter, shall be subject to a minimum tax of not less than ten dollars and not less than one mill upon each dollar of such a part of its issued capital stock, at its face value, as the amount of its gross assets employed by it in its business in this state bears to its gross assets wherever employed by it in its business. But if such a corpora- tion has stock without par value, then the base of the tax, with relation to such stock, shall be such a portion of such issued capital stock at not less than its actual or market value, and not less than five dollars per share, as may be determined by the tax commission, as its gross assets employed in its business in this state bear to the entire gross assets employed in its business. If such a corporation is subject to a tax at the rate of one mill, and it maintains no regular place of business outside this state, except a statutory office, it shall be taxed upon its entire issued capital stock as herein provided. Added by L. 1917, Ch. 726; amended by L. 1918, Ch. 376, 417; L. 1919, C!h. 628; L. 1920, Ch. 640; L. 1981, Ch. 705. • § 214-a. Taxation of corporations acquiring assets or franchises of other corporations. — If any corporation taxable under this article shall acquire either directly, indirectly or by merger or consolidation the major por- tion of the assets or the franchise of another corporation or of corporations exercising any franchifle'«r franchises §§ 215, 216 TAX LAW PEOVISIOITS 287 or doing any business in this state during any year, it shall include in its own next annual return, in addition to its own entire net income, so much of the entire net income of the corporation or corporations whose assets or franchises it acquired as shall not have been used or included in measuring a franchise tax to this state, and shall be taxed upon such combined entire net incomes for the year to ensue and as hereinbefore provided. The provisions for a minimum tax shall be applied only when under such provisions a tax will result in excess of the amount which would be produced by a tax on entire net income as hereinbefore provided and then in lieu thereof. This section shall be construed as having been in effect as of the date of the original enactment of article nine-a of the tax law, as added by chapter seven hun- dred and twenty-six of the laws of nineteen hundred and seventeen. Added by L. 1918, Ch. 292; amended by L. 1919, Ch. 628. § 215. Rate of tax. — The tax imposed by this article shall be at the rate of four and one-half per centum of the entire net income of the corporation or portion thereof taxable within the state, determined as provided by this article, unless taxable upon its capital stock at the rate of one mill or subject to the minimum tax of ten dollars, as provided in section two hundred and fourteen of the tax law. Added by L. 1917, Ch. 726; amended by L. 1919, Ch. 628; L. 1920, Ch. 640. § 216. Penalty for failure to report. — Any corporation which fails to make any report required by this article shall be liable to a penalty of not more than five thou- sand dollars to be paid to the state, to be collected in a civil action, at the instance of the tax commission; and any officer of any such corporation who makes a fraudu- lent return or statement with intent to defeat or evade the payment of the taxes prescribed by this article shall 288 TAX LAW PEOvisiosrs §§ 217,218 be liable to a penalty of not more than one thousand dollars, to be collected in like manner. Added by L. 1917, Ch. 736; amended by L. 1921, Ch. 443. § 217. Powers of tax commission. — The tax commis- sion may for good cause shown extend the time within which any corporation is required to report by this article. If any report required by this article be not made as herein required, the tax commission is author- ized to make an estimate of the net income of such cor- poration and of the amount of tax due under this article, from any information in its possession, and to order and state an account according to such estimate for the taxes, penalties and interest due to the state from such corpora- tion. All the authority and powers conferred on the tax commission by the provision of section one hundred and ninety-five of the tax law shall have full force and effect in respect of corporations which may be liable hereunder. Added by L. 1917, Oh. 736; amended by L. 1930, Ch. 640. § 218. Revision and readjustment of accounts by tax commission. — If an application for revision be filed with the commission by a corporation against which an ac- count is audited and stated within one year from the time any such account shall have been audited and stated, the commission shall grant a hearing thereon and if it shall be made to appear upon any such hearing by evidence submitted to it or otherwise, that any such ac- count included taxes or other charges which could not have been la^f fully demanded, or that payment has been illegally made or exacted of any such account, the com- mission shall resettle the same according to law and the facts, and adjust the accounts for taxes accordingly, and may, in its discretion, modify the penalty imposed, for failure to report as provided in this article, and shall §§ 219, 219-a TAX law pkovisions 289 send notice of its determination thereon to the corpora- tion forthwith. Added by L. 1917, Ch. 736; amended by L. 1920, Ch. 640; L. 1931, Ch. 443. V § 219. Review of determination of tax commission by certiorari and regulations as to writ. — The determina- tion of the commission upon any application made to it by any corporation for revision and resettlement of any account, as prescribed by this article, may be reviewed in the manner prescribed by and subject to the pro- visions of section one hundred and ninety-nine of this chapter. No certiorari to review any audit and statement of an account or any determination by the commission under this article shall be granted unless notice of application therefor is made within thirty days after the service of the notice of such determination. Eight days' notice shall be given to the commission of the application for such writ. The full amount of the taxes, percentage, interest and other charges audited and stated in such account must be deposited with the state tax commission before making the application and an undertaking filed with the commission, in such amount and with such sureties as a justice of the supreme court shall approve, to the efifect that if such writ is dismissed or the deter- mination of the commission affirmed, the applicant for the writ will pay all costs and charges which may accrue against it in the prosecution of the writ, including costs of all appeals. Added by L. 1917, Ch. 736; amended by L. 1918, Ch. 417; L. 1931, Ch. 443. § 2ig-a. Audit and statement of tax. — On or before the first day of December in each year the tax commission shall audit and state the account of each corporation known to be liable to a tax under this article, for its preceding fiscal or the preceding calendar year, and shall 19 290 TAX LAW PEOVISIONS §§ 219-b, 219-c compute the tax thereon and proceed to collect the same. The tax commission shall determine the portion of such tax to be distributed to the several counties and the amounts to be credited to the several cities or towns thereof, when the same is collected and 'shall certify such determination to the state comptroller. If the corpora- tion has real property or tangible personal property lo- cated in a village, or if it has no real or tangible per- sonal property in the state but the office in which its principal financial concerns within the state are trans- acted is located in a village, the tax commission shall certify such facts to the state comptroller, with the name of the village in which such office or property is located. Added by L. 1917, Ch. 726; amended by L. 1919, Ch. 628; L. 1921, Ch. 443.. § 219-b. Notice of tax. — Every report required by sec- tion two hundred and eleven of this chapter shall con- tain the post-office address of the corporation and lines or spaces upon which the corporation shall enter its entire income. Notice of tax assessment shall be sent by mail to the post-office address given in the report, and the record that such notice has been sent shall be presumptive evidence of the giving of the notice and such record shall be preserved by the tax commission. Added by L. 1917, Ch. 726; amended by L. 1919, Ch. 628. § 219-C. When tax payable. — The tax hereby imposed shall be paid to the state tax commission on or before the first day of January of each year, or within thirty days after notice of the tax has been given as provided in section two hundred and nineteen-b of this chapter if such notice is given subsequent to the first day of December of the year for which such tax is imposed. If such tax be not so paid, or in the case of additional taxes, if not paid within thirty days after notice of such additional tax has been given as provided in section two hundred and nineteen-d of this chapter and such notice § 219-d TAX LAW PBOVISIONS 291 of additional tax is given subsequent to the first day of December of the year for which such additional tax is imposed, the corporation liable to such tax shall pay to the state tax commission, in addition to the amount of such tax, or additional tax, ten per centum of such amount, plus one per centum for each month the tax or additional tax remains unpaid, but the state tax com- mission upon submission to it of satisfactory proof that the failure to pay such taxes, or additional taxes, within the time prescribed in this article, was not willful or evasive, may modify the exaction to not less than one per centum for each month following the due date of the tax. Each such tax or additional tax shall be a lien upon and binding upon the real and personal property of the corporation liable to pay the same from the time when it is payable until the same is paid in full. Added by L. 1917, Ch. 725; amended by L. 1918, Ch. 271; L. 1919, Gh. 628; L. 1920, C*. 640; L. 1921, C!h. 443. § 219-d. Corrections and changes. — If the amount of the net income for any year of any corporation taxable under this article as returned to the United States treasury department is changed or corrected by the com- missioner of internal revenue or other officer of the United States or other competent authority, such cor- poration, within- ten days after receipt of notice of such change or correction, shall make return under oath or affirmation to the tax commission of such changed or corrected net income, and shall concede the accuracy of such determination or state wherein it is erroneous. The tax commission shall ascertain, from such return and any other information in the possession of the com- mission, the entire net income of such corporation for the fiscal or calendar year for which such change or correction has been made by such commissioner of in- ternal revenue or other officer or authority. All the au- thority conferred on the tax commission by the pro- visions of section one hundred and ninety-five of this 292 TAX LAW PEOVISIONS § 219-6 chapter is hereby granted to it in respect to the ascer- tainment of such entire net income. The tax commis- sion shall thereupon reaudit and restate the account of such corporation for taxes based upo^ the entire net income for such fiscal or calendar year, such reaudit to be according to the entire net income so ascertained by the tax commission. The proceedings and determina- tion of the tax commission in the making of such re- assessment may be revised and readjusted and reviewed in the manner provided by sections two hundred and eighteen and two hundred and nineteen of this chapter, as in the case of an original assessment of the tax. If from such reassessment it appears that such corporation shall have paid under this article an excess of tax for the year for which such reassessment is made, the tax commission shall credit such corporation with such amount. Such credit may be assigned by the corpora- tion in whose favor it is allowed to a corporation liable to pay taxes under this article, and the assignee of the whole or any part of such credit on filing with the com- mission such assignment shall thereupon be entitled to credit upon the books of the tax commission for the amount thereof on the current account for taxes of such assignee in the same way and with the same effect as though the credit had originally been allowed in favor of such assignee. If from such reassessment it appears that an additional tax is due from such corporation for such year, such corporation shall, within thirty days after notice has been given as provided in section two hundred and nineteen-b of this chapter by the tax com- mission, pay such additional tax. Added by L. 1917, Ch. 736; amended by L. 1918, Ch. 276; L. 1919, Ch. 628; L. 1921, Ch. 443. § 219-e. Warrant for the collection of taxes. — If the tax imposed by this article be jiot paid within thirty days after the same becomes due, unless an appeal or other proceeding shall have been tal^en to review the § 219-f TAX LAW PKOVISIOHS 293 same, tlie tax commission may issue a warrant under its official seal directed to the sherifiE of any county of the state commanding him to levy upon and sell the real and personal property of the corporation owning the same, found within his county, for the payment of the amount thereof, with the added penalties, interest and the cost of executing the warrant, and to return such warrant to the tax commission and pay to it the money collected by virtue thereof by a time to be therein specified, not less than sixty days from the date of the warrant. Such warrant shall be a lien upon and shall bind the real and personal property of the corporation against whom it is issued from the time an actual levy shall be made by virtue thereof. The sheriff to whom any such warrant shall be directed shall proceed upon the same in all respects, with like effect, and in the same manner as prescribed by law in respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for his services in executing the warrant, to be collected in the same manner. Added by L. 1917, Cai. 786; amended by L. 1921, Ch. 443. § 2ig-f. Action for recovery of taxes; forfeiture of charter by delinquent corporations. — Actions may be brought at any time by the attorney-general at the in- stance of the tax commission, in the name of the state, to recover the amount of any taxes, penalties and interest due under this article. If such taxes be not paid within one year after the same be due, and the tax commission is satisfied that the failure to pay the same is intentional it shall so report to the attorney-general, who shall im- mediately bring an action in the name of the people of the state, for the forfeiture of the charter or franchise of any corporation failing to make such payment, and if it be found that such failure was intentional, judgment shall be rendered in each action for the forfeiture of such charter and for its dissolution if a domestic corporation 294 . TAX LAW PKOVisiosrs § 219-g and if a foreign corporation for the annulment of its franchise to do business in this state. Added by L. 1917, Ch. 736; amended by L. 1931, Ch. 443. § 219-g. Deposit of revenues collected. — The state tax commission shall deposit daily to the credit of the state comptroller on account of the franchise tax all taxes, in- terest and penalties collected under this article in respon- sible banks, banking houses or trust companies in the state to be designated by the state comptroller and which shall pay the highest rate of interest to the state for such deposit. And every such bank, banking house or trust company shall execute and file in the office of the state comptroller an undertaking to the state, in the sum, and with such sureties, as are required and ap- proved by the comptroller, for the safe keeping and prompt payment on legal demand therefor of all such moneys held by or on deposit in such bank, banking house or trust company, with interest thereon on daily balances at such rate as the comptroller may fix. Every such undertaking shall have indorsed thereon, or an- nexed thereto, the approval of the attorney-general as to its form. The state comptroller shall on the first day of each month make a verified return to the state treas- urer of all revenues received by him under this article during the preceding month, stating by whom and when paid, and shall credit himself with all payments made to county treasurers since his last previous return pur- suant to section two hundred and nineteen-h of this chapter. The tax commission shall in due time for the distribution thereof certify to the comptroller the ap- portionment Jp the various counties, towns, cities and other municipal subdivisions of the state the share of taxes received under this article to which they are en- titled and upon verification and approval of such appor- tionment by him the comptroller shall distribute such share of the tax moneys in accordance with the pro- visions of this article. Added by L. 1917, Ch. 786; amended by L. 1921, Ch. 443. § 219-h TAX LAW PKOVISIONS 295 § 219-h. Disposition of revenues collected. — The state comptroller shall on or before the twenty-fifth day of each month pay into the state treasury to the credit of the general fund all interest and penalties and two-thirds of all taxes received by him under this article during the preceding calendar month. The balance of all taxes col- lected and received by him under this article from any corporation, as appears from the return made by him to the state treasurer, shall, on or before the twenty-fifth day of April, July, October and January, for the quarter ending with the last day of the preceding month, be distributed and paid by him to the treasurers of the sev- eral counties of the state and disposed of by such treas- urers, in accordance with the following rules: 1. If the corporation has no tangible personal property within the state, such payment shall be made to the county treasurer of the county in which is located the office at which its principal financial concerns within the state are transacted; 2. If the corporation has tangible personal property, as shown by its report pursuant to section two hundred and eleven, in but one city or town of the state, such payment shall be made to the county treasurer of the county in which such city or town is located ; 3. If the corporation has tangible personal property in more than one city or town of the state, as shown by its report pursuant to section two hundred and eleven, such payment shall be made to the county treasurers of the counties in which such cities or towns are located in the proportion that the average monthly value of the tangible personal property of such corporation in the cities and towns of such county bears to the average monthly value of all its tangible personal property within the state; 4. In making such payment to a county treasurer, the state comptroller shall indicate the portion thereof to be credited to any city or town within the county on account of the location therein of its principal financial office or property as determined by the preceding sub- 296 TAX LAW PEOVISIONS § 219-h divisions, and if such principal financial office or prop- erty is located in a village shall indicate the village in which it is located; if such principal financial office or property is located in a city or in a town outside of a village, the whole of such portion shall be paid to such city or town as hereinafter provided; if such principal financial office or property is located in a village, there shall be paid to such village as hereinafter provided such a part of the entire amount credited to the town as the entire amount of taxes raised by said village, or portion thereof in said town, during the preceding calendar year for village and town purposes bears to the aggregate amount so raised by the town and village during the preceding calendar year for town and village purposes ; 5. As to any county wholly included within a city such payment shall be made to the chamberlain or other chief fiscal officer of such city and be paid into the general fund for city purposes ; 6. As to any county not wholly included within a city the county treasurer shall within ten days after the re- ceipt thereof pay to the chief fiscal officer of a city or to the chief fiscal officer of a village or to the supervisor of a town the portion of money received by him from the state comptroller to which such city, village or town is entitled, which shall be credited by such officer to gen- eral city, village or town purposes. The sum so paid to the supervisor of a town shall be further distributed by him as provided in subdivision seven following. 7. Upon the distribution of such revenues as herein- before provided the entire allotment of any town paid to the supervisor thereof shall be further distributed by him as folloMis: One-third thereof shall be apportioned among the several school districts in such town in the proportions that the total amount of the assessed valua- tion of all the real property of such corporations in each of said school districts, respectively, or part thereof in such town, bears to the aggregate assessed valuation of all the real property of such corporations in the entire town, as the same appears upon the last preceding town § 219-i TAX LAW PROVISIONS 297 assessment-roll. The balance thereof shall be retained by him and credited to general town purposes. Added by L. 1917, Ch. 736; amended by L. 1918, Ch. 417; L. 1919, Ch. 628; L. 1931, Ch. 443; L. 1921, Ch. 447. § 2ig-i. Secrecy required of officials; penalty for viola- tion. — I. Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for any tax commissioner, agent, clerk or other ofHcer or employee to divulge or make known in any manner the amount of income or any particulars set forth or dis- closed in any report under this article. Nothing herein shall be construed to prohibit the publication of statistics so classified as to prevent the identification of particular reports and the items thereof, or the publication of de- linquent lists showing the names of taxpayers who have failed to pay their taxes at the time and in the manner provided by section two hundred and nineteen-c together with any relevant information which in the opinon of the tax commission may assist in the collection of such delinquent taxes; or the inspection by the attorney- general or other legal representatives of the state of the report of any corppration which shall bring action to set aside or review the tax based thereon, or against whom an action or proceeding has been instituted in accord- ance with the provisions of sections two hundred and sixteen or two hundred and nineteen-f of this article. Reports shall be preserved for three years, and there- after until the state tax commission orders them to be destroyed. 2. Any offense against the foregoing provision shall be punished by a fine not exceeding one thousand dollars or by imprisonment not exceeding one year, or both, at the discretion of the court and if the offender be an officer or employee of the state he shall be dismissed from office and be incapable of holding any public office in this state for a period of five years thereafter. Added by L. 1917, Ch. 726; amended by L, 1921, Ch. 443. 298 TAX LAW PROVISIONS §§ 219-J-219-1 § 219-j. Exemption from certain other taxation. — After this article takes effect, corporations taxable there- under shall not be assessed on any personal property, or on capital stock as provided for in section twelve of this chapter. • Added by L. 1917, Ch. 726; amended by L. 1918, Ch. 271; L. 1919, Ch. 138; L. 1930, Ch. 113; L. 1920, Ch. 640. § 219-k. Limitation of time. — The provisions of the code of civil procedure relative to the limitation of time of enforcing a civil remedy shall not apply to any pro- ceeding or action taken to levy, appraise, assess, deter- mine or enforce the collection of any tax or penalty pre- scribed by this article. Added by L. 1917, Ch. 726. § 219-I. Personal property defined. — The term " per- sonal property," for the purposes of the exemption from assessment and taxation thereon locally as granted by section two hundred and nineteen-j of this chapter, shall include any movable machinery and equipment used for trade or manufacture and not essential for the support of the building, structure or superstructure, and remov- able without material injury thereto. The term " per- sonal property," as used in such section, shall not in- clude boilers, ventilating apparatus, elevators, plumbing, heating, lighting and power generating apparatus, shafting other than counter-shafting, equipment for the distribution of heat, light, power, gases and liquids, nor any equipment consisting of structures or erections to the operation of which machinery is not essential. An owner of a building is entitled to the same exemption under this section as a lessee. Added by L. 1M8, Ch. 271; amended by L. 1919. Ch. 628. See §§ 290-307, inclusive, relating to procedure on review of erroneous assessments, refunds and proceedings to collect taxes. § 270 TAX LAW PBOVISIOHS 299 ARTICLE 12 Tax on Transfers of Stock Section 270. Amount of tax. 371. Stamps how prepared and sold. 271a. Sale of stamps. 372. Penalty for failure to pay tax. 873. Cancelling stamps; penalty for failure. 374. Contracts for dies; expenses how paid. 275. Illegal use of stamps; penalty. 375a. Registration; penalty for failure. 276. Power of tax commission. 377. Civil penalties; how recovered. 278. Effect of failure to pay tax. 279. Application of taxes. 280. Refund of tax erroneously paid. § 270. Amount of tax. — There is hereby imposed and shall immediately accrue and be collected a tax, as herein provided, on all sales, or agreements to sell, or mem- oranda of sales of stock, and upon any and all deliveries or transfers of shares or certificates of stock, in any domestic or foreign association, company or corporation, made after the first day of June, nineteen hundred and five, whether made upon or shown by the books of the association, company or corporation, or by any assign- ment in blank, or by any delivery, or by any paper or agreement or memorandum or other evidence of sale or transfer, whether intermediate or final, and whether in- vesting the holder with the beneficial interest in or legal title to said stock, or merely with the possession or use thereof for any purpose, or to secure the future pay- ment of money, or the future transfer of any stock, on each hundred dollars of face value or fraction thereof, two cents, except in cases where the shares or certifi- cates of stock are issued without designated monetary value, in which cases the tax shall be at the rate of two cents for each and every share of such stock. It shall be the duty of the person or persons making or effectuating 300 TAX LAW PROVISIONS § 270 the sale or transfer to procure, affix and cancel the stamps and pay the tax provided by this article. It is not in- tended by this act to impose a tax upon an agreement evidencing the deposit of stock certificates as collateral security for money loaned thereon, which stock certifi- cates are not actually sold, nor upon such stock certifi- cates so deposited, nor upon mere loans of stock or the return thereof. The payment of such tax shall be denoted by an adhesive stamp or stamps affixed as fol- lows: In the case of a sale or transfer, where the evi- dence of the transaction is shown only by the books of the association, company or corporation, the stamp shall be placed upon such books, and it shall be the duty of the person making or effectuating such sale or transfer to procure and furnish to the association, company or corporation the requisite stamps, and of such associa- tion, company or corporation to affix and cancel the same. Where the transaction is effected by the delivery or transfer of a certificate, the stamp shall be placed upon the surrendered certificate and canceled ; and in cases of an agreement to sell, or where the sale is effected by delivery of the certificate assigned in blank, there shall be made and delivered by the seller to the buyer, a bill or memorandum of such sale to which the stamp provided for by this article shall be affixed and canceled. Every such bill or memorandum of sale or agreement to sell shall show the date of the transaction which it evidences, the name of the seller, the stock to which it relates, and the number of shares thereof. All such bills or memoranda of sale shall bear a number upon the face thereof and no more than one such bill or memorandivn of sale made by the seller on any given day shall bear the same number. The aforesaid identifi- cation number of the bill or memorandum of sale shall in all cases be entered and recorded in the book of account required to be kept by section two hundred and seventy-six of this chapter ; and no further tax is hereby imposed upon the delivery of the certificate of stock, or § 271 TAX LAW PROVISIONS 301 upon the actual issue of a new certificate when the orig- inal certificate of stock is accompanied by the duly stamped memorandum of sale as herein provided. Re-enaeted by L. 1910, Ch. 38; amended by L. 1911, Ch. 352; L. 1912, Ch. 392; L. 1913, Ch. 779. See § 31, Stock Corporation Law. See 208 N. Y. 147; 304 N. Y. 155; 151 App. Div. 368; 150 App. Div. 327; 145 App. Div. 663; 76 Misc. 499; 75 Misc. 56. § 271. Stamps, how prepared and sold. — Adhesive stamps for the purpose of paying the state tax provided for by this article shall be prepared by the tax com- mission, in such form, and of such denominations and in such quantities as it may from time to time prescribe, and shall be sold by it to the person or persons desiring to purchase the same ; the tax commission shall make provision for the sale of such stamps by such persons, in such places and at such times as in its judgment may be necessary. The tax commission may from time to time and as often as it deems advisable provide for the issuance and exclusive use of stamps of a new design and forbid the use of stamps of any other design. In order to effect such a change and to discontinue the use of stamps of a former design the tax commission shall publish or cause to be published once in each week for each of three months immediately preceding the time for taking effect of such change, in one or more daily newspapers pub- lished in each of the first and second class cities of the state, a notice to the effect that after a certain day, which shall be at least three months after the first pub- lication of said notice, none other than the new issue or design of stamps shall be accepted or made use of in payment of the tax provided for by this article. After such date it shall be unlawful for any person to make use of any other than the new issue or design of stamps in payment of such tax. Any person violating any of the provisions of this section shall be guilty of a mis- demeanor. 302 TAX LAW PROVISIONS § 271-a Any person lawfully in possession of unused stamps of an old or superseded issue or design may, within ninety days from the time when such change becomes effective as aforesaid, surrender the same to the tax commission together with a sworn statement setting forth the name and address of the owner and party sur- rendering said stamps, how, when and from whom the same were acquired and such other pertinent informa- tion as the tax commission may require ; whereupon the tax commission shall redeem such unused and sur- rendered stamps by exchanging therefor stamps of a like denomination of the new issue or design. Failure or refusal of the tax commission to redeem the same by such an exchange may be enforced by mandamus. Amended by L. 1913, Ch. 811; L. 1921, Ch. 443. See 204 N. Y. 155; 150 App. Div. 327; 145 App. Div. 663. § 271-a. Sale of Stamps. — No person, firm, company, association or corporation other than a corporation organized under the banking law of this state or under the national bank act of the United States, or a duly authorized agent of the tax commission, shall sell or expose for sale, traffic in, trade, barter or exchange any stamp issued pursuant to this article, and purchased or acquired by him after the time when this section as hereby amended takes effect, without first obtaining from the tax commission its written consent to sell, traffic in, trade, barter or exchange such stamps, except that in connection with a sale of or agreement to sell stock a broker or agent of the principal making such sale or agreement to sell may supply and affix the stamp or stamps rec^ired by this article. No person shall sell or expose for sale any stamp so purchased or acquired for a sum less than the face value thereof without the written consent of the tax commission. Any person lawfully in possession of unused stamps may request the tax commission for its consent to sell or dispose of the same. He shall present to the tax commission, if so § 272 TAX LAW pEovisioisrs 303 required, a sworn statement setting forth the name and address of the owner and the party desiring to sell or dispose of said stamps, how, when and from whom the same were acquired and the name and address of the person or persons to whom it is proposed to sell or dis- pose of the same, and such other pertinent and relevant information as the tax commission may require. There- upon the tax commission may give its written consent to sell the same. Upon the failure or refusal of the tax commission to give such consent the same may be enforced by mandamus. Any person violating any of the provisions of this section shall be guilty of a mis- demeanor, and upon conviction thereof shall be punish- able by a fine of not less than five hundred nor more than one thousand dollars, or by imprisonment for not more than six months, or by both such fine and imprison- ment, in the discretion of the court. Added by L. 1911, Ch. 13; amended by L. 1913, Ch. 811; L. 1916, Ch. 552; L. 1931, Ch. 443. See 204 N. Y. 155; 150 App. Div. 237; 14B App. Div. 663; 74 Miac. 492. § 272. Penalty for failure to pay tax. — Any person or persons liable to pay the tax by this article imposed, and any one who acts in the matter as agent or broker for such person or persons, who shall make any sale, transfer or delivery of shares or certificates of stock, without paying the tax by this article im- posed, and any person who shall in pursuance of any sale, transfer or agreement, deliver any stock or evidence of the sale or transfer of or agreement to sell any stock, or bill or memorandum therebf, or who shall transfer or cause the same to be transferred upon the books or records of the association, company or corporation, and any association, company or corporation whose stock is sold or transferred, which shall transfer or cause the same to be transferred upon its books, without having the stamps provided for in this article affixed thereto, 304 TAX LAW PROVISIONS §§ 273,274 shall be deemed guilty of a misdemeanor, and upon con- viction thereof shall pay a fine of not less than five hun- dred nor more than one thousand dollars, or be im- prisoned for not more than six months or by both such fine and imprisonment, in the discretion of the court. Amended by L. 1911, Ch. 353; L. 1912, Ch. 293. See 204 N. Y. 155; 150 App. Div. 227; 145 App. Div. 663. § 273. Cancelling stamps ; penalty for failure. — In every case where an adhesive stamp shall be used to de- note the payment of the tax provided by this article, the person using or affixing the same shall write or stamp thereupon the initials of his name and the date upon which the same shall be attached or used, and shall cut or perforate the stamp in a substantial manner, so that such stamp cannot be again used ; and if any person makes use of an adhesive stamp to denote the payment of the tax imposed by this article, without so effectually can- celling the same, such person shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than two hundred nor more than five hundred dollars or be imprisoned for not less than six months, or both, in the discretion of the court. Amended by L. 1911, Ch. 352. See 304 N. Y. 155; 150 App. Div. 227. § 274. Contracts for dies; expenses, how paid. — The tax commission is hereby directed to make, enter into and execute for and in behalf of the state such contract or contracts for dies, plates and printing necessary for the manufacture of the stamps provided for by this ar- ticle, and preside such stationary and clerk hire together with such books and blanks as in his discretion may be necessary for putting into operation the provisions of this article; the tax commission shall be the custodian of all stamps, dies, plates or other material or thing furnished by it and used in the manufacture of such state tax stamps, and all expenses incurred by it and §§ 275, 275-a tax law provisions 305 under its direction in carrying out' the provisfons of this article shall be paid to it by the state treasurer from any moneys appropriated for such purpose. Amended by L. 1931, Ch. 443. See 204 N. Y. 155; 143 App. Div. 873. § 275. Illegal use of stamps; penalty. — Any person who shall willfully remove or alter or knowingly permit to be removed or altered the canceling or defacing marks of any stamp provided for by this article with intent to use such stamp, or who shall knowingly or willfully buy, prepare for use, use, have in his possession or suffer to be used any washed, restored or counterfeit stamp, and any person who shall intentionally remove or cause to be removed or knowingly permit to be removed any stamp, afiRxed pursuant to the require- ments of this article, shall be guilty of a misdemeanor and on conviction thereof shall be liable to a fine of not less than five hundred nor more than one thousand dol- lars, or be imprisoned for not more than one year, or by both such fine and imprisonment, at the discretion of the court. Amended by L. 1911, C*. 12; L. 1913, Ch. 393. See 304 N. Y. 155. § 27s-a. Registration; penalty for failure. — Every per- son, firm, company, association or corporation engaged in whole or in part in the making or negotiating of sales, agreements to sell, deliveries or transfers of shares or certificates of stock, or conducting or transacting a stock brokerage business, and every stock association, com- pany or corporation which shall maintain a principal office or place of business within the state or which shall keep or cause to be kept within the state of New York a place for the sale, transfer or delivery of its stock, shall within ten days after the amendment to this section shall take effect if such a certificate shall not have been theretofore filed with the state comptroller, or within 20 306 TAX LAW PROVISIONS § 276 ten days after engaging in such business or after estab- lishing such principal ofiSce or place of business or such place for the sale or transfer of its stock, as the case may be, file in the office of the tax commission a certificate setting forth the name under which such business is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons conducting or transacting the same, with the post-office address or addresses of said person or persons, unless the party so certifying be a corporation, in which event it shall set forth its said principal office or place of business and when and where incorporated. Said certificate shall be executed and duly acknowledged by the person or per- sons so conducting or intending to conduct said business or by the president or secretary of the corporation as the case may be. In the event of a change in the persons composing such firm, company or association or of the address of any such person, firm, company, association or corporation, or termination of such business or relationship, a like certificate setting forth the facts with respect to such change or termination shall within ten days thereafter be filed in the office of the tax commission. Any such person, firm, company, association or cor- poration who shall fail to comply with the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than one hundred dollars nor more than five hundred dollars or be imprisoned for not more than six months or by both such fine and imprisonment, in the discretion of the court. Added by L. €913, Ch. 779; amended by L. 1914, Ch. 206; L. 1921, Ch. 443. § 276. Power of tax commission. — Every person, firm, company, association or corporation, engaged in whole or in part in the making or negotiating of sales, agree- ments to sell, deliveries or transfers of shares or certifi- § 276 TAX LAW PROVISIONS 307 cates of stock, or conducting or transacting a brokerage business, shall keep or cause to be kept at some access- ible place within the state of New York, a just and true book of account, in such form as may be pre- scribed by the tax commission, wherein shall be plainly and legibly recorded in separate columns, the date of making every sale, agreement to sell, delivery or trans- fer of shares or certificates of stock, the name of the stock and the number of shares thereof, the face value of the stock, the name of the seller or transferrer, the name of the purchaser or transferee and the number and face value of the adhesive stamps aiifixed and the identi- fying number of the bill or memorandum of sale used as provided for by section two hundred and seventy of this chapter. Every association, company or corporation shall keep or cause to be kept at some accessible place within the state of New York, a stock certificate book and a just and true book of account, transfer ledger or register, in such form as may be prescribed by the tax commission, wherein shall be plainly and legibly recorded in separate columns the date of making every transfer of stock, the name of the stock and the number of shares thereof, the serial number of each surrendered certificate, the name of the party surrendering such certificate, the serial number of the certificate issued in exchange therefor, the number of shares covered by said certificate, the name of the party to whom said certificate was issued and evidence of the payment of the tax provided for by section two hundred and seventy of this chapter, which evidence, however, shall be provided in one of the fol- lowing manners and not otherwise, to wit: (a) By attaching to the stock certificate surrendered for transfer, the stamps required for such transfer, or (b) If the stamps are not attached to the certificate, but are attached to the bill or meinorandum of sale effect- ing or evidencing the transfer of such certificate, by attaching to said. certificate the said bill or memorandum of sale with stamps attached, or 308 TAX LAW PROVISIONS § 276 (c) If the stamps covering the transfer are attached to a bill or memorandum effecting a transfer of one or more certificates or to one or more certificates included in said transfer, a notation must be made upon such certificates, bill or memorandum, aS the case may be, clearly specifying and identifying the certificate or cer- tificates of stock to the sale or transfer of which the said stamps apply, or (d) If the bill or memorandum bearing such stamps is not attached to the surrendered certificate or certificates to which it applies, a notation must be made upon such bill or memorandum stating the serial number or num- bers of the certificates to which said bill or memorandum applies, as provided by section two hundred and seventy of this chapter. It shall also retain and keep all sur- rendered or canceled shares or certificates of its stock and all memoranda relating to the sale or transfer of any thereof. All such books of account, transfer ledgers, registers and stock certificate books, shall be retained and kept as aforesaid for a period of at least two years subsequent to the date of the last entry made therein as herein required; and all such surrendered or canceled shares or certificates of stock and memoranda relating to the sale or transfer of stock, shall be retained and kept for a period of at least two years from the date of the delivery thereof. For the purpose of ascertaining whether the tax imposed by this article has been paid, all such books of account, transfer ledgers, registers, stock certificate books, surrendered or canceled shares or certificates of stock and memoranda relating to the sale or transfer thereof, shall at all times between the hours of teijL o'clock in the forenoon and three o'clock in the afternoon, except Saturdays, Sundays and legal holidays, be open to examination by the tax commission or its duly authorized representative. The tax commission may enforce its right to examine such books of account and bills or memoranda of sale or transfer; and such transfer ledger, register and stock § 277 TAX LAW PEOVISIOKS 309 certificate books and surrendered or canceled shares or certificates of stock by mandamus. If the tax commis- sion ascertains that the tax provided for in this article has not been paid, it shall bring an action in its name as such tax commission, in any court of competent juris- diction for the recovery of such tax and for any penalty incurred by any person under the provisions of this article. Every person, firm, company, association or corpora- tion w^ho shall fail to keep such book of account or bills or memoranda of sale or transfer, or transfer ledger, register or stock certificate book or surrendered or can- celed shares or certificates of stock as herein required, or who alters, cancels, obliterates or destroys any part of said records, or makes any false entry therein, or who shall refuse to permit the tax commission or any of its authorized representatives freely to examine any of said books, records or papers at any of the times herein pro- vided, or who shall in any other respect violate any of the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall for each and every such offense pay a fine of not less than five hundred dollars nor more than five thousand dollars, or be imprisoned not less than three months nor more than two years, or both in the discretion of the court. Amended by L. 1910, Ch. 453; L. 1911, Ch. 352; L. 1912, Ch. 292; L. 1913, Ch. 779; L. 1921, Ch. 443. See 204 N. Y. 155; 145 App. Div. 663. § 277. Civil penalties; how recovered. — Any person, firm, company, association or corporation who shall violate any of the provisions of section two hundred and seventy or section two hundred and sevehty-two of this chapter shall in addition to the penalties herein provided forfeit to the people of the state a civil penalty of ten dollars for each and every share of stock so sold or transferred, or transferred or entered upon the books of the corporation, as the case may be, without the pay- 310 TAX LAW PROVISIONS §§ 278,279 ment of the tax by this article imposed thereon. Any person who shall violate any of the other provisions of this article shall in addition to the penalties hereinbefore provided forfeit to the people of the state a civil penalty of five hundred dollars for each and every such violation. The tax commission shall bring an action in its name as such tax commission in any court of competent juris- diction for the recovery of any civil penalty; and all moneys collected by it shall be paid into the state treasury. In an action against a corporation or its transfer agent to recover a penalty because of its transfer of stock upon the books or records of the corporation without requiring the payment of the tax by this article imposed, the failure of the corporation or its transfer agent, on the demand of the tax commission or its duly authorized representative, to produce the sur- rendered certificate or memoranda of sale with the re- quired stamps attached, shall constitute prima facie proof of the nonpayment of the tax imposed by section two hundred and seventy of this chapter. Amended by L. 1912, Ch. 2.93; L. 1921, Ch. 443. See 204 N. Y. 155. § 278. Effect of failure to pay tax. — No transfer of stock made after June first, nineteen hundred and five, on which a tax is imposed by this article, and which tax is not paid at the time of such transfer, shall be made the basis of any action or legal proceedings, nor shall proof thereof be ofifered or received in evidence in any court in this state. See 204 N. Y. 153, 155; 76 Misc. 499; 75 Misc. 56. § 279. Amplication of taxes. — The taxes imposed under this article and the revenues thereof shall be paid by the tax commission into the state treasury and be applicable to the general fund, and to the payment of all claims and demands which are a lawful charge thereon. Amended by L. 1921, Ch. 443. See 143 App. Div. 873. § 280 TAX LAW PROVISIONS 311 § 280. Refund of tax erroneously paid. — If any stamp or stamps shall have been erroneously affixed to any book, certificate of stock, or bill or memorandum of sale, the tax commission may, upon presentation of a claim for the amount of such stamp or stamps and upon the production of evidence satisfactory to it that such stamp or stamps was or were so erroneously affixed so as to cause loss to the person or persons making such claim, pay such amount, or such part thereof as it may allow, to such claimant out of any moneys appropriated for that purpose. Such claims shall be presented to the tax commission in writing, duly verified, and shall state the full name and address of the claimant, the date of such erroneous affixing, the face value of such stamp or stamps and shall describe the instrument to which the stamp or stamps were affixed and contain such evidence as may be available upon which the demand for such refund is based. Such claims shall be presented within ninety days after such erroneous affixing unless such affixing shall have taken place prior to the date on which this act shall take effect, in which case such claim shall be presented within ninety days after the date on which this act shall take effect. If the tax commission rejects a claim or any part thereof, the claimant may file a claim for the recovery of such sum as the tax commission shall have refused to allow, with the court of claims, which shall constitute a private claim against the state and shall be subject to all the provisions of law governing such claims, except that all claims so presented shall be filed with the court of claims within ninety days from the date on which such claim shall be rejected by the tax commission. For the purposes of this section, the tax commission's decision shall be deemed to have been made at the time of the depositing of a copy of such decision in the post-office inclosed in a duly post-paid wrapper and directed to the person making such claim at the address contained in the verified claim presented to the tax commission as hereinbefore provided. Added IJy L. 1910, Ch. 186; amended by L. 1921, Ch. 443. See 81 Misc. 5S3. 312 EULINGS OF STATE COMPTEOLLER RULINGS OF THE STATE COMPTROLLER GOVERNING THE COLLECTION OF TAXES ON TRANSFERS OF STOCK For the information of the public the Comptroller issues the following brief statement of the more general rules and regulations governing the imposition and collection of stock transfer taxes,. prepared pursuant to the rulings made by the Attorney General. 1. The application and scope of the Stock Transfer Tax Law has been considerably broadened by the amendments thereto, effected by chapter 352 of the Laws of 191 1, chapter 292 of the Laws of 1912, chapter 779 of the Laws of 1913, chapter 206 of the Laws of 1914 and chapter 552 of the Laws of 1916, with the result that the rulings heretofore made asserting exemptions from the tax are not now as a rule controlling. 2. A tax is imposed upon all sales or agreements to sell and upon all deliveries or transfers of shares or cer- tificates of stock of any and all associations, companies and corporations, whether domestic or foreign at the rate of two cents on each hundred dollars of face value or fraction thereof, except where shares or certificates of stock are issued without designated monetary value, in which case the tax shall be two cents for each and every share of such stock. 3. The statute does not apply to the original issue of stock; but all sales or transfers made subsequent thereto, whether intermediate or final, are taxable. 4. It is not necessary to render it taxable that the transaction ■ involve a sale. By the statute, as amended, a tax is imposed upon all sales or transfers of shares or certificates of stock, whether operating to convey the beneficial interest in or merely the legal title to said BTJLINGS OF STATE COMPTROLLEB 313 stock, or possession or use thereof for any purpose. The only exceptions to this rule are those expressly pro- vided for in section 270 of the law. 5. The transfer to and from voting trustees is taxable, also the transfer of voting trust certificates. 6. The mere surrender of a certificate of stock for reissue in smaller denominations is not taxable; but if reissued in part to the original owner and in part to a third party it is taxable to the extent of the transfer to the third party. 7. Likewise the mere surrender of a certificate of stock held by a deceased person for issuance in the name of his executor or administrator is not taxable ; but all trans- fers made by the latter, whether to trustees, legatees or other persons, are taxable. 8. The law applies to the stock of foreign as well as domestic corporations and to residents and non-residents alike. 9. While the law has no extra-territorial operation, nevertheless, where it appears that the transfer of the stock on the corporate books within this state is essen- tial to render the transfer effectual, it subjects it to a tax, although in all other respects made without the state. 10. It is the duty of the person making or effectuating the sale or transfer to pay the required tax by procuring, afifixing arid canceling the stamps, except that where a sale or transfer is shown only by the books of the cor- poration, the person making the sale must secure, and the corporation affix and cancel the stamps to its books. (Sec. 270.) 11. Where the sale or transfer is effected by the delivery or transfer of a certificate the stamp must be placed upon the surrendered certificate. In case of an agreement to sell, or where the sale is effected by the delivery of the certificate assigned in blank, there must be made and delivered by the seller to the buyer a bill or memorandum of such sale, to which the stamps shall be afifixed and canceled. This bill or memorandum 314 EULINGS OF STATE COMPTKOLLEE with Stamp attached must be affixed to the certificate, or properly identified as provided by section 276, when presented for transfer. A strict compliance with these requirements will be insisted upon. ' 12. Every such bill or memorandum of sale, agreement to sell or sales ticket must show: (a) The date of the transaction which it evidences. (b) The name of the seller. (c) The stock to which it relates and the number of shares thereof; and all such memorandum of sale or sales ticket as are not used for the pur- pose of transfer must be kept by the broker for two years from their respective dates. (d) And an identifying number as provided by sec- tion 270. 13. All persons liable for the payment of the tax and all persons acting as agents or brokers for any such per- sons or for the corporation whose stock is transferred, who in any manner assists in consummating a sale or transfer without payment of the required tax, are guilty of a misdemeanor. 14. Likewise corporations, and persons acting as trans- fer agents for corporations, are forbidden to transfer stock on the books of the corporation until the required tax has been paid ; and for a failure to perform this duty they are guilty of a misdemeanor. 15. Every stamp used to denote the payment of the tax must be canceled by the user by writing or stamping thereon the initials of his name and the date upon which the stamp is attached or used. He must also cut or perforate me stamp in a substantial manner so that it cannot again be used. A failure so to do renders the party guilty of a misdemeanor. 16. Under no circumstances may a stamp erroneously attached to a certificate or memorandum be removed. An adequate remedy in such cases, in the nature of a refund, is provided by section 280 of the act. RULINGS OF STATE COMPTROLLER 315 17. Every broker is required to keep a just and true book of account in the form prescribed by the comp- troller wherein shall be plainly and legibly recorded in separate columns: (a) The date of making every sale, agreement to sell, delivery or transfer of shares or certifi- cates of stock. (b) The name of the stock and the number of shares thereof. (c) The face 'value thereof. (d) The name of the seller or transferrer. (e) The name of the purchaser or transferee. (f) The identifying number of the bill or memor- andum of sales as provided by section 270. These books must be kept for a period of at least two years subsequent to the date of such entry made therein and are subject to examination by the comptroller or his representatives at all times between 10 a. m. and 3 p. m. (Saturdays, Sundays and legal holidays excepted.) 18. Every corporation or its transfer agent shall keep a just and true book of account in the form prescribed by the comptroller, wherein shall be plainly and legibly recorded in separate columns: (a) The date of making every transfer of stock. (b) The name of the stock and the number of shares thereof. (c) The serial number of each surrendered certifi- cate. (d) The name of the party surrendering each cer- tificate. (e) The serial number of the certificate issued in exchange therefor. (f) The number of shares represented by said cer- tificate. (g) The name of the party to whom said certificate was issued, (h) The evidence of the payment of the tax as pro- vided by section 276. 316 KULINGS OF STATE COMPTROLLEE It shall also keep and retain a stock certificate book and all surrendered or canceled shares or certificates of its stock and memoranda relating to the sale thereof for a period of two years from the date of the delivery thereof. All such books and papers are subject to the examina- tion by the comptroller or his representative at any time between the hours of lo a. m. and 3 p. m. (Saturdays, Sundays and legal holidays excepted.) 19. It is imperative that these books', records and mem- oranda be kept and retained strictly in the form and man- ner provided by the statute and severe penalties are imposed for a failure so to do. 20. Severe penalties, civil and criminal, are also pro- vided by the act for the illegal sale or use of stamps, for the removal or re-use thereof, for the failure to pay the tax imposed and for the violation of the other require- ments of the statute. Furthermore, the failure to pay the tax constitutes an absolute defense to an action to recover the purchase price of the stock. 21. Every person, firm, company, association or cor- poration engaged in whole or in part in the making or negotiating of sales, agreements to sell, deliveries or transfers of shares or certificates of stock, or conducting or transacting a stock brokerage business, shall within ten days after July i, 1913, or within ten days after engaging in such business, file with the state comp- troller, either in Albany or New York city, a certificate setting forth the name under which such business is or is to be conducted or transacted and the true and real full names of the person or persons conducting or trans- acting the^ame, with the post-office address or addresses of said persons, or in the event of a change in the per- sons conducting such business or change of address, like certificate setting forth the facts shall within ten days thereafter be filed. Such certificate shall be duly acknowledged. A failure to perform this duty is a mis- demeanor. EtTLINGS or STATE COMPTROLLER 317 22. Every stock association, company or corporation which shall maintain a principal office or place of busi- ness within the state or which shall keep or cause to be kept within the state of New York a place for the sale, transfer or delivery of its stock shall within ten days after April 7, 1914, if such certificate shall not have been theretofore filed, or within ten days after engaging in or maintaining a place for such business, file with the state comptroller, either in Albany or New York city, a certificate setting forth the name of the company, the place of business and when and where incorporated, or in the event of a change in the persons or change of address like certificate setting forth the facts shall within ten days thereafter be filed. Such certificates shall be duly acknowledged by the president or secretary of the corporation. A failure to perform this duty is a mis- demeanor. 23. The comptroller will be pleased at any time to advise interested parties as to the provisions and require- ments of the law. Stock transfer tax stamps are of the following de- nominations: Two, four, ten, twenty and fifty cents, $1, $2, $10 and $20, and are for sale by Empire Trust Co., 120 Broadway, New York City; National Commercial Bank, Albany; Utica Trust & Deposit Co., Utica; The Syracuse Trust Co., Syracuse; Rochester Trust & Safe Deposit Co., Rochester; The Peoples Bank of Buffalo, Bufl^alo; Chemung Canal Trust Co., Elmira; The North- ern New York Trust Co., Watertown; Broome County Trust Co., Binghamton; Bank of Jamestown, James- town, N. Y.; Poughkeepsie Trust Co., Poughkeepsie ; First National Bank of Boston, Boston, Mass., and Empire Trust Co., London branch, London, England. 318 CIVIL PKACTICE ACT PROVISIONS CIVIL PRACTICE ACT PROVISIONS Definitions. § 7. General definitions and rules of construction. — In construing this act, the following rules must be ob- served, except where a contrary intent is expressly de- clared in the provision to be construed or plainly ap- parent from the context thereof: * * * 7. A " domestic corporation " is a corporation created by or under the laws of the state, or located in the state, and created by or under the laws of the United States, or. by or pursuant to the laws in force in the colony of New York before the nineteenth day of April ih the year seventeen hundred and seventy-five. Every other corporation is a " foreign corporation." Actions, limitation of. § 17. Attempt to commence action in court of record. — An attempt to commence an action in a court of record is equivalent to the commencement thereof against each defendant, within the meaning of each provision of this act which limits the, time for commencing an action, when the -summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which tha:t defendant, or one of two or more co-defendants who are joint contractors or otherwise united in interest with him, resides or last resided ; or, if the defendant is a corporation, to a like officer of the county in which it is established by law or wherein its general business is or was las% transacted or wherein it keeps or last kept an office for the transaction of business. But in order to entitle a plaintiff to the benefit of this section, the delivery of the summons to an officer must be followed within sixty days after the expiration of the time limited for the actual commencement of the action by personal service of the summons or by service thereof without the state, upon the defendant sought to be charged, or CIVIL PRACTICE ACT PROVISIONS 319 by the first publication of the summons, as against that defendant, pursuant to an order for service upon him in that manner or by substituted service of the summons on such defendant within the state pursuant to an order. § i8. Attempt to commence action in court not of record. — The last section excluding the provision re- quiring a publication or service of the summons within sixty days applies to an attempt to commence an action in a court not of record, where the summons is delivered to an officer authorized to serve the same, within the city or town, wherein the person resides or the corpora- tion is located, as specified in that section ; provided that actual service thereof is made with due diligence. County courts. § 68. When domestic corporation or joint stock com- pany deemed resident for determining jurisdiction of county court. — For the purpose of determining the juris- diction of a county court in either of the cases specified in the last section, a domestic corporation or joint-stock association whose principal place of business is estab- lished by or pursuant to a statute or by its articles of association, or whose principal place of business or any part of its plant or plants, shops, factories or offices is actually located within the county, or in case of a rail- road corporation where any portion of the road operated by it is within the county, it is deemed a resident of the county ; and personal service of a summons, made within the county, as prescribed in this act, or personal service of a mandate whereby a special proceeding is com- menced, made within the county, as prescribed in this act for personal service of a summons, is sufficient service thereof upon a domestic corporation wherever it is located. A city which shall include within its boun- daries, however, more than one county shall not be deemed a domestic corporation resident of any county so included, for the purpose of conferring jurisdiction on a county court. 320 CIVIL PRACTICE ACT PROVISIONS Preferred causes. § 138. Preferences among civil actions. — Civil causes are entitled to preference among themselves, in the trial or hearing thereof, in the following order, next after the causes specified in section one hundred and thirty-nine: II. An action against a corporation or joint-stock asso- ciation, issuing bank notes or any kind of paper credits, to circulate as money ; or by or against a receiver of such a corporation or association. ****** 13. An action against a corporation, founded upon a note or other evidence of debt for the absolute payment of money. Summons. § 228. Personal service of summons upon domestic *corporation. — Personal service of the summons upon a domestic corporation must be made by delivering a copy thereof, within the state, as follows : * * * * * * to the president or other head of the corpora- tion, the secretary or clerk to the corporation, the cashier, the treasurer or a director or managing agent. § 229. Personal service of summons upon foreign cor- poration. — Personal service of the summons upon a foreign corporation must be made by delivering a copy thereof, within the state, as follows: 1. To the president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary; or, if the cor- poration lacK either of those officers, to the officer per- forming corresponding functions under another name. 2. To a person designated for the purpose as provided in section sixteen of the general corporation law. 3. If such a designation be not in force, or if neither the person designated, nor an officer specified in sub- division first of this section, can be found with due dili- CIVIL PRACTICE ACT PROVISIONS 321 gence, to the cashier, a director or a managing agent of the corporation, within the state. 4. If the person designated as provided in section six- teen of the general corporation law dies or removes from the place where the corporation has its principal place of business within the state and the corporation does not within thirty days after such death or removal designate in like manner another person upon whom process against it may be served within the state, the summons in an action against the corporation upon any liability incurred within this state, may be served, after such death or removal, and before another designation is made, upon the secretary of state. § 230. Order for substituted service of summons in certain cases. — Where a summons is issued in any court of record, an order for the service thereof upon a de- fendant, whether a domestic corporation other than a municipal corporation, a joint-stock or other unincor- porated association having a president or treasurer resid- ing within the state, or a natural person residing within the state, may be made by the court, or a judge thereof, or the county judge of the county where the action is triable, upon satisfactory proof that the plaintiff has been or will be unable, with due diligence, to make per- sonal service of the summons within the state. § 231. Manner of making substituted service. — The order must direct that the service of the summons be made (i) by leaving a copy thereof, and of the order, if the defendant is a domestic corporation or joint-stock or other unincorporated association, at its piincipal office or place of business, or if a natural person, at the resi- dence of the defendant, with a person of proper age, if upon reasonable application admittance can be obtained and such person found who will receive it; or (2) if ad- mittance cannot be so obtained nor such person found, 21 322 CIVIL PRACTICE ACT PROVISIONS by affixing the same to the outer or other door of the defendant's said place of business or office, or of his residence, and by depositing in a post-office another copy thereof, properly inclosed in a post-paid wrapper, ad- dressed to the defendant at its said* principal office or place of business, or to him at his place of residence, or (3) in the case of a natural person, upon proof by affi- davit that no such residence can be found, service of the summons may be made in such manner as the court may direct. § 232. Order for service of summons by publication. — An order directing the service of a summons upon a de- fendant, by publication, may be made in either of the following cases : I. Where the defendant to be served is a foreign cor- poration; or is a joint-stock association or other unincor- porated association having a president and treasurer neither of whom is a resident of this state ; or, being a domestic corporation, where after diligent effort ser- vice cannot be made within the state upon the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer or a direc- tor or managing agent; or, being a natural person, is not a resident of the state; or where, after diligent in- quiry, the defendant remains unknown to the plaintiff or the plaintiff is unable to ascertain whether the defendant is or is not a resident of the state. * ****** 6. Where the complaint demands judgment that the defendant be excluded from a vested or contingent in- terest in or,lien upon specific real or personal property within the state ; or that such an interest or lien in favor of either party be enforced, regulated, defined or limited ; or otherwise affecting the title to such property; or where it appears by affidavit that a warrant of attach- ment, granted in the action, has been levied upon prop- erty of the defendant within the state. CIVIL PRACTICE ACT PROVISIONS 323 7. Where the defendant is a resident of the state or a domestic corporation and an attempt was made to com- mence the action against the defendant before the ex- piration of the limitation applicable thereto and the limi- tation would have expired within sixty days next pre- ceding the application if time had not been extended by the attempt to commence the action. 8. Where the action is against the stockholders of a corporation or joint-stock company and is authorized by law of the state and the defendant is a stockholder thereof. The order must be founded upon a verified complaint showing a sufficient cause of action against the defendant to be served, or upon a verified complaint to recover a sum of money only and proof by afifidavit that a warrant of attachment, granted in the action, has been levied upon property of the defendant within the state, and proof by afifidavit of the additional facts required by this section ; and "also, where the application is made upon the ground that the defendant is a foreign corporation or not a resident of the state, or in a case specified in subdivision fifth, sixth, or eighth, that the plaintiff, with due diligence, has been or will be unable to make per- sonal service of the summons. Amended by L. 1921, Ch. 199. Action on note, etc. § 252. Verification in action against corporation to re- cover on note or other evidence of debt. — In an action against a foreign or domestic corporation to recover damages for the non-payment of a promissory note, or other evidence of debt, for the absolute payment of money, upon demand, or at a particular time, the an- swer must be verified. Evidence. § 340. Admission by member of corporation. — The ad- mission of a member of an aggregate corporation, who is 324 CIVIL PRACTICE ACT PROVISIONS not a party, shall not be received as evidence against the corporation unless it was made concerning and while engaged in a transaction in which he was the authorized agent of the corporation; or unless it was made while a member of such corporation and testifying as a wit- ness concerning a transaction of the corporation, when the oiificial record of such testimony shall be received. Documentary evidence. § 373- Book of foreign corporation as evidence, — Where a party wishes to prove an act or transaction of a foreign corporation, the book or books of the corpora- tion may be used for that purpose, as presumptive evi- dence, whether any or all of the parties are or are not members of the corporation. § 374. Copy of books of foreign corporation. — i. If an original book of a foreign corporation is npt produced at the trial, as prescribed in the last section, a copy thereof or of an entry therein, verified as prescribed in this sec- tion, may be used with like effect as the original book; provided that the party intending to use the copy gives the adverse party at least ten days' notice of his inten- tion, specifying briefly the nature of the evidence pro- posed to be given. 2. The copy must be verified by the deposition, taken as prescribed by law, or the oral testimony taken at the trial, of the person who made it or of a person who has examined and compared it with the original book, or the entry therein. 3. The witness must testify that the copy produced is correct; that he made it, or compared it with the origi- nal; and that he then knew that the original book so copied, or containing the entry, was the book of the cor- poration; or that it was then acknowledged to him to be such, by an officer or receiver of the corporation, or a person having the custody thereof, naming the person CIVIL PRACTICE ACT PROVISIOKS 325 who made the acknowledgment; and he must specify where and m whose custody the original was then kept. 4. This section does not apply where the foreign cor- poration is a party to the action and seeks to prove its own act or transaction in its own behalf. § 377- Designation of person upon whom to make service, as evidence. — An exemplified copy of a desig- nation of a person upon whom to make service filed by a foreign corporation as provided in section sixteen of the general corporation law accompanied with a cer- tificate that it has not been revoked, is presumptive evi- dence of the execution thereof, and conclusive evidence of the authority of the oificer executing it. Subpoena duces tecum; order to produce. § 411. Production of book of account upon trial or hearing. — A person shall not be compelled to produce upon a trial or hearing a book of account, otherwise than by an order requiring him to produce it or a sub- poena duces tecum. Such a subpoena must be served at least five days before the day when he is required to attend. At any time after service of such a subpoena or order, the witness may obtain, upon such a notice as the judge, referee or other officer prescribes, an order relieving him wholly or partly from the obligations im- posed upon him by the subpoena or the order for pro- duction, upon such terms as justice requires touching the inspection of the book or any portion thereof, or taking a copy thereof or extracts therefrom, or other- wise. An order may be made, as prescribed in this sec- tion, by a judge of the court, or in a special proceeding pending out of court before an officer, by the officer, or, in either case, by a referee duly appointed in the cause and authorized to hear testimony. A justice of the peace, or other judge of a court not of record, may make such an order in an action brought in his court at any time after the commencement thereof. 326 CIVIL, PKACTICE ACT PROVISION'S § 413. Production of corporation book or paper on trial. — The production upon a trial, of a book or paper belonging to or under the control of a corporation, may be compelled in like manner as if it was in the hands, or under the control, of a natural pei^on. For that pur- pose, a subpoena duces tecum, or an order made as pre- scribed in the last section but one, as the case requires, must be directed to the president, or other head of the corporation, or to the officer thereof, in whose custody the book or paper is. § 414. Personal attendance pursuant to subpoena duces tecum. — In a case specified in the last section, or where a subpoena duces tecum, or an order, made as prescribed in sections four hundred and ten or four hundred and eleven of this act, requires a public officer to attend and bring a book or paper under his control, the subpoena or order is deemed to be sufficiently obeyed, if the book or paper is produced by a subordinate officer or em- ployee of the corporation, or in the public office, who possesses the requisite knowledge to identify it and to testify respecting the purposes for which it is used. If the personal attendance of a particular officer of the corporation or public officer is required, a subpoena, without a duces tecum clause, must also be served upon him. Challenges to jurors. § 452. Challenge to the favor. — The fact that a juror is in the employ of a party to the action; or, if a party to the action is a corporation, that he is an employee thereof or a shareholder or a stockholder therein; or in actions for damages for injuries to person or property, that he is a shareholder, stockholder, director, officer or employee, or in any manner interested, in any insur- ance company issuing policies for protection against liability for damages for injury to persons or property, shall constitute a good ground for a challenge to the favor as to such juror. CIVIL PEACTICE ACT PROVISIONS 327 Trial by referee. § 464. Reference by consent of parties. — Except in a case specified in the next section, the whole issue, or any of the issues in an action, must be referred, upon the consent of the parties manifested by a written stipu- lation signed by their attorneys and filed with the clerk. Where the stipulation does not name the referee, he may be designated by the court, on motion of either party. Where the stipulation names the referee, the clerk must enter an order, of course, referring the issue or issue;^ for trial, to that person only. If the referee named in a stipulation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee, unless the stipulation expressly provides otherwise. Amended by L. 1931, Ch. 372. § 465. Reference in discretion of court. — A reference shall not be made, of course, upon the consent of the parties, in an action to annul a marriage or for a divorce or a separation ; or an action against a corporation, to obtain a dissolution thereof, the appointment of a re- ceiver of its property, or the distribution of its property, unless it is brought by the attorney-general; or an ac- tion wherein a defendant to be affected by the result of the trial is an infant. In a case specified in this section, where the parties consent to a reference, the court, in its discretion, may grant or refuse a reference; and, where a reference is granted, the court must designate the referee. If the referee thus designated refuses to serve, or if a new trial of an action tried by a referee so designated is granted, the court, upon the application of either party, must appoint another referee. Judgment against non-resident, how enforced. § 520. Judgment against non-resident enforceable only against attached property. — Where a defendant who has not appeared is a non-resident of the state, or a foreign 328 CIVIL PRACTICE ACT PBOVISIONS corporation, and the summons was served without the state, or by publication pursuant to an order obtained for that purpose, the judgment can be enforced only against the property which has been levied upon by virtue of a warrant of attachment at the time when the judgment is entered. But this section does not declare the effect of such a judgment with respect to the application of any statute of limitation. Garnishment. § 684. Levy upon earnings or income of judgment debtor. — i. Where a judgment has been recovered and where an execution issued upon said judgment has been returned wholly or partly unsatisfied, and where any wages, debts, earnings, salary, income from trust funds or profits are due and owing to the judgment debtor or shall thereafter become due and owing to him, to the amount of twelve dollars or more per week, the judg- ment creditor may apply to the court in which said judg- ment was recovered or the court having jurisdiction of the same without notice to the judgment debtor, and upon satisfactory proof of such facts by affidavits or otherwise the court, if a court not of record, a judge or justice thereof, must issue, or if a court of record, a judge or justice, must grant an order directing that an execution issue against the wages, debts, earnings, salary, income from trust funds or profits of said judg- ment debtor, and on presentation of such execution by the officer to whom delivered for collection to the per- son or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing or m^ thereafter become due and owing to the judgment debtor, said execution shall become a lien and a continuing levy upon the wages, earnings, debts, salary, income from trust funds or profits, due or to be- come due to said judgment debtor to the amount specified therein which shall not exceed ten per centum thereof, and said levy shall be a continuing levy until said execu- CIVIL PRACTICE ACT PROVISIONS 329 tion and the expenses thereof are fully satisfied and paid or until modified as hereinafter provided, but only one execution against the wages, debts, earnings, salary, in- come from trust funds or profits of said judgment debtor shall be satisfied at one time, and where more than one execution has been issued or shall be issued pursuant to the provisions of this section against the same judg- ment debtor, they shall be satisfied in the order of priority in which such executions are presented to the person or persons from whom such wages, debts, earn- ings, salary, income from trust funds or profits are due and owing. 2. It shall be the duty of any person or corporation, municipal or otherwise, to whom said execution shall be presented, and who shall at such time be indebted to the judgment debtor named in such execution, or who shall become indebted to such judgment debtor in the future, and while said execution shall remain a lien upon said indebtedness, to pay over to the officer presenting the same such amount of such indebtedness as such ex- ecution shall prescribe until said execution shall be wholly satisfied, and such payment shall be a bar to any action therefor by any such judgment debtor. 3. If such person or corporation, municipal or other- wise, to whom said execution shall be presented, shall fail or refuse to pay over to said officer presenting said execution the percentage of said indebtedness, he or it shall be liable to an action therefor by the judgment' creditor named in such execution, and the amount so recovered by such judgment creditor shall be applied towards' the payment of said execution. 4. Either party may apply at any time to the court from which such execution shall issue, or to any judge or justice issuing the same, or to the county judge of the county, and in any county where there is no county judge, to any justice of the city court, upon such notice to the other party as such court, judge, or justice shall direct, for a modification of said execution, and upon "330 CIVIL PRACTICE ACT PROVISIONS such hearing the said court, judge or justice may make such modification of said execution as shall be deemed just, and such execution as so modified shall continue in full force and effect until fully paid and satisfied or until further modified as herein provided. * 5. This section, so far as it relates to wages and salary due and owing or to become due and owing to the judg- ment debtor, shall not apply to judgments recovered more than ten years prior to September first, nineteen hundred and eight, nor to judgments heretofore or here- after recovered upon such judgments, and any execu- tion heretofore issued upon such judgments pursuant to an order heretofore granted under this section shall, when this act takes effect, cease to be a lien and con- tinuing levy upon wages and salary thereafter to be- come due and owing to the judgment debtor. Supplementary proceedings. § 777. Certain money or other property not affected. — This article does not authorize the seizure of, or other interference with, any property which is expressly ex- empt by law from levy and sale by virtue of an execu- tion ; or any money, thing in action or other property held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has pro- ceeded from, a person other than the judgment debtor; or the earnings of the judgment debtor for his personal services rendered within sixty days next before the in- stitution of the special proceeding, when it is made to appear by his oath or otherwise that those earnings are necessary for.the use of a family wholly or partly sup- ported by his labor. § 798. Mode of service of certain orders. — An injunc- tion order, or an order requiring a person to attend and be examined, made as prescribed in this article, must be served as follows : CIVIL PRACTICE ACT PROVISIONS 331 1. The original order under the hand of the judge making it must be exhibited to the person to be served. 2. A copy thereof and of the affidavit upon which it was made must be delivered to him. Service upon a corporation is sufficient if made upon an officer to whom a copy of a summons must be de- livered where a summons is personally served upon the corporation; unless the officer is specially designated by the judge, as prescribed in section seven hundred and ninety of this act. Arrest, injunction and attachment. § 8i6. Proof on application or hearing. — Proof of a sufficient cause of action or fact in support thereof or of any extrinsic fact, to entitle a party to such an order or warrant, or proof to support or oppose a motion to vacate the order or warrant or discharge a person from arrest, or discharge an attachment, may be made by affidavit and by such other written evidence as the rules permit. Injunction. § 821. Order or warrant to recite the grounds therefor. — The order or warrant must briefly recite the ground or grounds on which it is granted. Arrest § 826. Right to arrest depending upon the nature of the action. — A defendant may be arrested in an action, as provided in this and the next article, where the ac- tion is brought for either of the following causes: 1. To recover a fine or penalty. 2. To recover damages for a personal injury. 3. To recover damages for an injury to property, in- cluding the wrongful taking, detention or conversion of personal property. 4. To recover damages for breach of a promise to marry. 332 CIVIL PRACTICE ACT PROVISIONS 5. To recover damages for misconduct or neglect in office, or in a professional employment. 6. To recover damages for fraud, or deceit. 7. To recover a chattel where it is alleged in the com- plaint that the chattel or a part thereof has been con- cealed, removed or disposed of so that it cannot be found or taken by the sheriff and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action, and a judgment for the de- fendant is not a bar to a new action to recover the chattel. 8. To recover for money received, or to recover prop- erty or damages for the conversion or misapplication of property, where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counselor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action; and a judgment for the defendant is not a bar to a new action to recover the money or property. 9. To recover money, funds, or property, held or owned by the state, or held or owned, officially or other- wise, for or in behalf of a public or governmental in- terest, by a municipal or other public corporation, board, officer, custodian agency, or agent, of the state or of a city, county,^ town, village, or other division, subdivi- sion, department, or portion of the state, which the de- fendant, without right, has obtained, received, con- verted, or disposed of, or to recover damages for so ob- taining, receiving, paying, converting, or disposing of the same. 10. In an action upon contract, express or implied, CIVIL PRACTICE ACT PROVISIONS 333 Other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that, since the making of the contract, or in contemplation of making of the same, he has removed or disposed of his property with intent to defraud his creditors, or is about to re- move or dispose of the same with like intent ; but where such allegation is made, the plaintiff cannot recover un- less he proves the fraud on the trial of the action; and a judgment for the defendant is not a bar to a new ac- tion to recover upon the contract only. § 883. Service of order. — Where the injunction order is granted by the court, it must be served by delivering a certified copy thereof; where it is granted by a judge, it must be served by showing the original order and delivering a copy thereof. Service of the order upon a corporation may be made as prescribed by law for mak- ing personal service of a summons upon a corporation. Copies of the papers upon which the order was granted must be delivered with the copy of the order. § 895. Damages sustained by a third person. — Where the defendant enjoined was an officer of a corporation, or joint-stock association, or a bailee, agent, trustee or other representative of another, and the damages sus- tained by him are less than the sum specified in the undertaking, the court or the referee may also separately ascertain and determine the damages sustained by rea- son of the injunction, by the corporation, association, or person, whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking; and those damages may be recovered in a separate action brought as prescribed in the next section. § 896. Action on the undertaking. — Where the dam- ages have been ascertained by the decision of the court, or the confirmation of a referee's report, as prescribed in the last two sections, any person entitled to the benefit 334 CIVIL PRACTICE ACT PROVISIONS of an undertaking given to obtain an injunction order or on account of such an order, pursuant to the pro- visions of, or referred to in, this article, may bring an action thereon without further leave of the court. Attachment. § 902. In what actions attachment of property may be had. — A warrant of attachment against the property of one or more defendants in an action may be granted upon the application of the plaintiff, as specified in the next section, where the action is to recover a sum of money only, as a tax or as damages for one or more of the following causes : 1. Breach of contract, express or implied, other than a contract to marry. 2. Wrongful conversion of personal property. 3. An injury to person or property in consequence of negligence, fraud or other wrongful act. 4. A wrongful act, neglect or default by which the decedent's death was caused, when the cause of action arose in this state before or after the passage of this act and the action is brought by an executor or adminis- trator agaiinst a natural person who, or a corporation which, would have been liable to an action, in favor of the decedent by reason thereof if death had not ensued. § 903. What must be shown to procure warrant of attachment. — To entitle the plaintiff to such a warrant, he must show that a cause of action specified in the last section exists against the defendant, and, if the action is to recover damages for breach of contract, that the plaintiff is eMitled to recover a stated sum, over and above all counterclaims known to him. He must also show that the defendant 1. Is either a foreign corporation or not a resident of the state; or 2. If a natural person and a resident of the state, has departed therefrom with intent to defraud his creditors CIVIL PRACTICE ACT PROVISIONS 335 or to avoid the service of a summons, or keeps liimself. concealed therein with the like intent; or 3. If a natural person or domestic corporation, has re- moved or is about to remove property from the state with intent to defraud his or its creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property with the like intent or if the defendant is a domestic corporation that no person can be found within the state after diligent effort, upon whom a summons can be served ; or 4. Has made a false statement in writing, under his own hand or signature, or under the hand or signature of a duly authorized agent made with his knowledge and acquiescence, as to his financial responsibility or stand- ing, for the purpose of procuring credit or the extension of credit; or 5. If an adult and a resident of the state, has been con- tinuously without the state for more than six months next before the granting of the order of publication of the summons against him and has not made the designa- tion, provided for by statute, of a person upon whom to serve a summons in his behalf, or a designation so made no longer remains in force, or service upon the person so designated cannot be made within the state after diligent effort. § 914. Attachment of unpaid subscription to foreign corporation. — Under a warrant of attachment against a foreign corporation, other than a corporation created by or under the laws of the United States, the sheriff may levy upon the sum remaining unpaid upon a subscrip- tion to the capital stock of the corporation, made by a person within fhe county; or upon one or more shares of stock therein, held by such a person, or transferred by him, for the purpose of avoiding payment thereof. § 915. Levy upon interest in shares or bonds. — The rights or shares which the defendant has in the stock of 336 CIVIL PRACTICE ACT PROVISIONS an association or corporation, or in a bond negotiable or otherwise, together with the interest and profits thereon, may be levied upon; and the sheriff's certificate of the sale thereof entitles the purchaser to the same rights and privileges, with respect thereto, whfch the defendant had when they were so attached. § 916. Levy upon cause of action, evidence of debt or claim to estate. — The attachment may also be levied upon a cause of action arising upon contract; including a bond, promissory note, or other instrument for the pay- ment of money only, negotiable or otherwise, whether past due or yet to become due, executed by a foreign or domestic government, state, county, public officer, asso- ciation, municipal or other corporation, or by a private person, either within or without the state ; which belongs to the defendant and is found within the county. The levy of the attachment thereupon is deemed a levy upon, and a seizure and attachment of, the debt represented thereby. The attachment may also be levied upon a right or interest, present or future, to any of the prop- erty or estate of a deceased person which may belong to the defendant and which could be legally assigned by him as legatee or distributee, whether the same exists by reason of the provisions of a last will and testament admitted to probate at the time the attachment is granted, or by operation of the law in case of the in- testacy of the deceased. Levy of the attachment there- upon is deemed a levy upon, and a seizure and attach- ment of, the rights and interests of the defendant at the time of such levy, subject to the rights of the executor, administrator qf trustee of such estate to administer the same according to law. § 917. Method of making levy. — A levy under a war- rant of attachment must be made as follows : I. Upon real property, by filing with the clerk of the county where it is situated, a notice of the attachment, CIVIL PRACTICE ACT PROVISIONS 337 stating the names of the parties to the action, the amount of the plaintiff's claim, as stated in the warrant, and a description of the particular property levied upon. The notice must be subscribed by the plaintiff's attorney, adding the office address; and must be recorded and in- dexed by the clerk, in the same book, in like manner and with like effect as a notice of the pendency of an action. 2. Upon the personal property capable of manual de- livery, including a bond, promissory note, or other in- strument for the payment of money, by taking the same into the sheriff's actual custody. He thereupon, with- out delay, must deliver to the person from whose pos- session the property is taken, if any, a copy of the war- rant and of the affidavits upon which it was granted. 3. Upon other personal property, by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same ; or, if it con- sists of a demand, other than as specified in the last sub- division, with the person against whom it exists; or, if it consists of a right or share in the stock of an associa- tion or corporation, or interests or profits thereon, with the president, or other head of the association or cor- poration, or the secretary, cashier, or managing agent thereof, or if it consists of a right or interest in an estate of a deceased person arising under the provisions of a will or under the provisions of law in case of in- testacy, with the executor or trustee under the will, or the administrator of the estate. 4. Upon property discovered in any action brought as prescribed in subdivision two of section nine hundred and twenty-two of this act, by entering in the proper clerk's office the judgment rendered in said action, and thereafter levying on said property in the manner pre- scribed in subdivisions one, two and three of this section. § 918. Certificate of defendant's interest to be fur- nished. — Upon the application of a sheriff holding a war- 22 338 CIVIL PRACTICE ACT PROVISIONS rant of attachment, the president or other head of an association or corporation, or the secretary, cashier, or . managing agent thereof, or a debtor of the defendant, or a person holding property, including a bond, promissory note, or other instrument for the payment of money, belonging to the defendant, must furnish to the sheriff a certificate, under his hand, specifying the rights or number of shares of the defendant in the stock of the association or corporation, with all dividends declared or incumbrances thereon; or the amount, nature and description of the property held for the benefit of the defendant, or of the defendant's interest in property so held, or of the debt or demand owing to the defendant, as the case requires. § 919. Examination of person refusing certificate. — If a person to whom application is made, as prescribed in the last section, refuses to give such a certificate; or if it is made to appear, by aifidavit, to the satisfaction of the court or a judge thereof, or the county judge of the county to which the warrant is issued, that there is reason to suspect that a certificate given by him is un- true, or that it fails fully to set forth the facts required to be shown thereby, the court or judge may make an order directing him to attend at a specified time and at a place within the county to which the warrant is issued, and submit to an examination under oath concerning the same. The order, in the discretion of the court or judge, may direct an appearance before a referee named therein. See section 530, ante, as to enforcement of judgment against non-resident. Judgment creditor's action, § 1 196. Application of provisions for action of dis- covery; what property cannot be reached. — The provi- sions of this article authorizing and regulating an ac- tion by a judgment creditor for discovery and satisfac- tion do not apply to a case where a judgment debtor is CIVIL PRACTICE ACT PROVISIONS 339 a corporation created by or under the laws of the state. Nor does it authorize the discovery or seizure of, or other interference with, any property which is expressly exempted by law from levy and sale by virtue of an execution, or any money, thing in action or other prop- erty held in trust for a judgment debtor, where the trust has been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor; or the earnings of the judgment debtor for his personal services rendered within sixty days next before the commencement of the action, where it is made to appear, by his oath or otherwise, that those earnings are necessary for the use of a family wholly or partly supported by his labor. Action against usurper of office. § 1208. Action by attorney-general against usurper of office or franchise. — The attorney-general may maintain an action, upon his own information or upon the com- plaint of a private person, against a person who usurps, intrudes into or unlawfully holds or exercises within the state a franchise or a public office, civil or military, or an office in a domestic corporation. § 1209. One action against several persons. — Where two or more persons claim to be entitled to the same office or franchise, the attorney-general may bring the action against all to determine their respective rights thereto. § 121 1. Proceedings in action for usurpation when complaint names rightful incumbent. — In an action for usurping, intruding into, unlawfully holding or exercis- ing an office, the attorney-general besides stating the cause of action in the complaint, may set forth therein, in his discretion, the name of the person rightfully en- titled to the office and the facts showing his right thereto. Judgment may be rendered upon the right of 340 CIVIL PRACTICE ACT PROVISIONS the defendant and of the party so alleged to be entitled, or only upon the right of the defendant, as justice requires. § 12 1 2. Order of arrest in action for usurpation. — If the complaint in an action by the attorney-general for usurping, intruding into, unlawfully holding or exercis- ing an office, sets forth the name of the person right- fully entitled to the office and the facts showing his right thereto, an order to arrest the defendant may be granted by the court, or a judge thereof, upon proof by affidavit that the defendant by means of his usurpation or intrusion has received any fees or emoluments be- longing to the office. The provisions of statute or rule relating to orders of arrest generally apply to such order and the proceedings thereupon and subsequent thereto. § 1214. Action for damages for usurpation of office. — Where final judgment has been rendered upon the right and in favor of the person alleged in the complaint to be entitled to an office, he may recover, by action against the defendant, the damages which he has sustained in consequence of the defendant's usurpation, intrusion into, unlawful holding or exercise of the office. § 12 15. Final judgment in action for usurping office or franchise. — In any action, brought as prescribed in this article, where a defendant is adjudged to be guilty of usurping or intruding into or unlawfully holding or exercising an office, franchise or privilege, final judg- ment must be rendered, ousting and excluding him therefrom, and in favor of the people or the relator, as the case requires, for the costs of the action. § 1 2 16. Fine in action for usurping office or franchise. — As a part of the final judgment in an action for usurp- ing or intruding into or unlawfully holding or exercis- ing an office, franchise or privilege, the court, in its dis- CIVIL PRACTICE ACT PROVISIONS 341 cretion, also may award that the defendant, or, where there are two or more defendants that one or more of them, pay to the people a fine not exceeding two thou- sand dollars. The judgment for the fine may be docketed and execution may be issued thereupon in favor of the people, as if it had been rendered in an action to recover the fine. § 1217. Action by attorney-general for unlawful exer- cise of corporate rights. — The attorney-general may maintain an action upon his own information or upon the complaint of a private person, 1. Against one or more persons who act as a corpora- tion within the state without being duly incorporated ; or exercises within the state any corporate rights, privi- leges or franchises not granted to them by the law of the state. 2. Against a foreign corporation which exercises within the state any corporate rights, privileges or fran- chises not granted to it by the law of this state; or which within the state has violated any provision of law, or, contrary to law, has done or omitted any act or has exercised a privilege or franchise not conferred upon it by the law of this state, where, in a similar case, a domestic corporation in accordance with section one hundred and thirty-one of the general corporation law, would be liable to an action to vacate its charter and to annul its existence; or which exercises within the state any corporate rights, privileges or franchises in a man- ner contrary to the public policy of the state. § 12 18. Injunction in action by attorney-general for unlawful exercise of corporate rights. — In an action brought as prescribed in section twelve hundred and seventeen of this act, the final judgment in favor of the plaintiff must perpetually restrain the defendant or de- fendants from the commission or continuance of the act or acts complained of. A temporary injunction to re- 342 CIVIL PRACTICE ACT PROVISIONS strain the commission or continuance thereof may be granted upon proof, by affidavit, that the defendant or defendants have violated any of the provisions of such section. The provisions of statute or rule relating gen- erally to injunctions as provisional remedies in actions apply to such a temporary injunction and the proceed- ings thereupon. § i2ig. Immunity of witnesses in action by attorney- general for unlawful exercise of corporate rights. — In the trial of an action brought as prescribed in section twelve hundred and seventeen of this act, a party or a witness is not excused from answering a question on the ground that such answer will tend to incriminate him; but such answer cannot be used as evidence against the person so answering, in a criminal action or criminal proceeding. § 1 22 1. Action triable by jury. — An action brought as prescribed in this article, is triable, of course and of right, by a jury, in like manner as if it were an action in which the complaint demands judgment for a sum of money only, and without procuring an order of the court defining the issues. Mandamus. § 1321. Service of alternative mandamus order. — An alternative mandamus order must be served by deliver- ing a certified copy thereof together with a copy of the petition, and other papers, if any, to the person to be served. Where the order is directed against a court or the judge or judges of a court, it must be served, either in term time or in vacation, upon the judge or judges of the court; except that, where the court consists of three or more judges, service upon a majority of them is suffi- cient. Where it is to be served upon a board or body, other than a corporation, service must be made upon a majority of the members thereof, unless the board or CIVIL PRACTICE ACT PROVISIONS 343 body was created by law and has a chairman or other presiding officer appointed pursuant to law; in which case, service upon him is sufficient. Where the order is to be served upon a corporation, service may be made upon any officer upon whom a summons issued out of the supreme court may be served. Security for costs generally. § 1484. When defendant may require plaintiff to give security for costs. — The defendant in an action brought in a court of record may require security for costs to be given : A. Where the plaintiff, when the action was com- menced, either was * * * 2. A foreign corporation; * * * 8. In a case specified in this section, if there are two or more plaintiffs, the defendant cannot require security for costs to be given unless he is entitled to require it of all the plaintiffs. Summary proceedings. § 1421. Precept; how served. — The precept must be served as follows: I. By delivering to the person to whom it is directed, or, if it is directed to a corporation, to an officer of the corporation upon whom a summons issued out of the supreme court in an action against the corporation might be served, a copy of the precept together with a copy of the petition and at the same time showing him the original precept. 3. Where service cannot with reasonable diligence be made as prescribed in either of the foregoing subdivi- sions of this section, by affixing a copy of the precept and petition upon a conspicuous part of the property. ****** Added by L. 1931, Oh. 199. 344 K'EW YORK CITY COURT ACT PROVISION NEW YORK CITY COURT ACT PROVISION. § i8. General jurisdiction. — The jurisdiction of the city court of the city of New York, extends to the fol- lowing cases : * I. An action against a natural person, or against a foreign or domestic corporation, wherein the complaint demands judgment for a sum of money only, or to re- cover one or more chattels, with or without damages for the taking or detention thereof; * * * MUNICIPAL COURT CODE PIIOVISIONS 345 MUNICIPAL COURT CODE PROVISIONS. § 6. Jurisdiction. — The municipal court of the city of New York shall have jurisdiction: * * * ■ 4. Of actions and summary proceedings, within the foregoing limitations, by or against the city of New York; by or on behalf of the people of the state of New York; by or against a domestic corporation or a foreign corporation ; by or against a domestic or foreign executor or administrator in his representative capacity; by or against a committee of an incompetent. Attachment. § 39. In what actions granted. — In an action of which this court has jurisdiction, a warrant of attachment against the property of one or more defendants may be granted on the application of the plaintiff, if such a war- rant might be granted were the action brought in the supreme court. § 40, Grounds; affidavit. — To entitle the plaintiff to a warrant of attachment he must show by affidavit to the satisfaction of the court: 1. That a cause of action for which a warrant of attach- ment may be granted exists against the defendant; and if the action is based upon a breach of contract, that the plaintiff is entitled to recover a sum stated, in excess of all counterclaims known to him. 2. That the defendant is either a foreign corporation or not a resident of the state; * * * Action against corporation on a note. § 94. Order that issues be tried unnecessary in action against corporation. — In an action against a corpora- tion, an order directing that the issues presented by the pleadings be tried shall not be required. 346 sxjreogate's court act provisions SURROGATE'S COURT ACT PROVISIONS. § 55. Citation; how served within state. — Personal service of a citation virithin the state shall be made as follows: * * * * * * * upon a corporation by delivering a copy thereof in the manner prescribed for personal service of a summons in an action in the supreme court upon such a person, or upon a corporation. Upon a public officer by delivering a copy thereof to such officer, or to one of his duly constituted deputies. Where it appears, by affidavit, to the satisfaction of the surrogate from whose court a citation is issued, that proper and diligent effort has been made to serve it as hereinbefore prescribed in this section upon a resident of the state whose place of residence or place of business is known, and that the person to be served cannot be found at his residence or place of business, and cannot be elsewhere served within the state within a reasonable time, or, if found, that he evades service, so that it can- not be made ; the surrogate may make an order directing that service thereof be made, by leaving a copy thereof, and of the order, if the defendant is a domestic corpora- tion or joint-stock or other unincorporated association at its principal office or place of business, or if a natural person, at the residence of the defendant, with a person of proper age, if upon reasonable application, admittance can be obtained, and such person found who will re- ceive it; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door pi the defendant's said place of business or office, or of his residence, and by depositing another copy thereof, properly enclosed in a postpaid wrapper, addressed to the defendant at its said principal office or place of business, or to him at his place of residence, in the post-office at the place where he resides, or where said office, place of business or residence is located, or surrogate's court act provisions 347 upon proof being made by affidavit that no such resi- dence can be found, service of the summons may be made in such manner as the court may dir.ect ; the order, and the papers upon which it was granted, must be filed, and the service must be made, within ten days after the order is granted ; otherwise the order becomes inopera- tive. On filing an affidavit, showing service according to the order, the citation is deemed served, and the same proceedings may be taken thereupon, as if it had been served by publication, pursuant to an order for that purpose. ****** § 56. Service personally without the state, or by pub- lication. — The surrogate from whose court a citation is issued may make an order directing the service thereof personally without the state, or by publication, in either of the following, cases: 1. Where it is to be served upon a foreign corpora- tion, * * *. § 133. Letters of administration with will annexed; when and to whom granted. — If no person is named as executor in the will, or selected by virtue of a power con- tained therein ; or if, at any time there is no executor, or administrator with the will annexed, qualiiied to act; the surrogate must, upon the application of a creditor of the decedent, or a person interested in the estate of the decedent, or having a lien upon any real property upon which the decedent's estate has a lien, and upon such notice to the other creditors and persons interested in the estate as the surrogate deems proper, issue letters of administration with the will annexed, as follows : 2. To one or more of the residuary legatees, who are qualified to act as administrators. A corporation which is a residuary legatee shall be qualified to act as such administrator, although not specially authorized by its charter or any provision of law. * * * 348 SUBROGATE 'S COURT ACT PROVISIONS Except as to the right of priority as provided in this section, the provisions of section one hundred and eigh- teen of this act apply to an application for letters of ad- ministration with the will annexed. JUSTICE COURT ACT PROVISIONS 349 JUSTICE COURT ACT PROVISIONS. Jurisdiction and service. § 10. Where action must be brought. — An action must be brought before a justice of a town or city wherein one of the parties resides or a justice- of an adjoining town or city in the same county, except in one of the following cases ; * * * 2. Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs when all are non- residents thereof, it must be brought in the town where the defendant resides or in any adjoining town thereto. 3- Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city in which he is at the time of the commencement of the action. 4. Where it is specially prescribed by law that a par- ticular action may be brought before a justice of the town, city, county, or district, where an offense was committed or where property is found. 5. In any town adjoining an incorporated city no jus- tice of such town shall have jurisdiction of any action brought against a resident of such adjoining city unless one of the parties plaintiff in such action is a resident of such town. A defendant designated in sections fifty-one, fifty- two, fifty-three and fifty-four of this act is deemed, for the purposes of this section, a resident of the town or city where the person to whom a copy of the summons is delivered resides. § II. Actions generally; by or against whom brought. — An action cognizable by a justice of the peace may be brought by or against: I. A corporation; * * * § 51. Service on other corporations. — Where the de- fendant to be served is a corporation other than a 350 JUSTICE COURT ACT PROVISIONS domestic municipal corporation, personal service of the summons must be made by delivering a copy thereof anywhere within the state, as follows : 1. If the defendant be a domestic corporation, to the president or other head of the corporation, the secretary or clerk ; the cashier, treasurer, a managing agent, or any director or trustee, by whatever official title he is called. 2. If the defendant be a foreign corporation, to the president, treasurer or secretary; or, if the corporation lacks either of these officers, to the officer performing corresponding functions under another name; or, to the cashier, a director or managing agent of the corporation ; or to a person designated for the purpose as provided in section sixteen of the general corporation law. Attachments in justice court. § 74. In what actions warrant of attachment may be granted. — In an action brought before a justice of the peace a warrant of attachnient against the property of one or more defendants must be granted upon the appli- cation of the plaintiiif, as prescribed in this article, where the action is brought upon a judgment, or to recover for one or more of the following causes : 1. Breach of a contract, express or implied. 2. Wrongful conversion of personal property. 3. Any other injury to personal property in conse- quence of negligence, fraud, or other misconduct. § 75. What must be shown to procure a warrant. — To entitle the plaintiff to such a warrant he must show by affidavit to the satisfaction of the justice as follows: I. That a sufficient cause of action exists against the defendant to recover damages for one or more of the causes specified in the last section. If the action is on a judgment, or to recover for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter- claims known to him. JUSTICE COURT ACT PROVISIONS 351 2. That the defendant is a foreign corporation; or ****** 6. If the defendant is a domestic corporation, that it has removed or is about to remove property from the county where it last kept its principal office, or from the county in which the action is brought, with intent to defraud its creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete property with the like intent; or 7. If the defendant is an adult natural person and a resident of the state, that he has been continuously without the United States during the six months im- mediately before the application, and that he has not made a designation of a person on whom to serve a summons in his behalf as prescribed in section fifty-nine or that service on the person so designated cannot be made with due diligence in the county where the person making the designation resides. The affidavit must be filed with the justice when the warrant is granted. Verification. § 153- Verification; how and by whom made. — The verification must be made by the affidavit of the party, or if there are two or more parties united in interest and pleading together, by at least one of them who is acquainted with the facts, except as follows : I. Where the party is a domestic corporation, the verification must be made by an officer thereof. jK * * * * * 3. Where the party is a foreign corporation ; or where the party is not within the county where the attorney resides, or, if the latter is not a resident of the state, the county where he has his office and capable of making the affidavit; or, if there are two or more parties united in interest and pleading together, where neither of them, acquainted with the facts, is within that county and capable of making the affidavit; or where the action or defense is founded on a written instrument for the pay- 352 JUSTICE COUBT ACT PROVISIOIirS ment of money only, which is in the possession of the agent or the attorney; or where all the material allega- tions of the pleading are within the personal knowledge of the agent or the attorney; in either case the verifica- tion may be made by the agent of dr the attorney for the party. § 154. Form of affidavit of verification. — The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth in the affidavit the grounds of his belief as to all matters not stated upon his knowledge and the reason why it is not made by the party. Actions by or against corporations. § 170. Complaint in actions by or against corpora- tions. — In an action brought by or against a corpora- tion, the complaint must aver that the plaintiff, or the defendant, as the case may be, is a corporation; must state whether it is a domestic corporation or a foreign corporation; and, if the latter, the state, country or gov- ernment by or under whose laws it was created. But the plaintiff need not set forth, or specially refer to, any act or proceeding by or under which the corporation was created. § 171. Misnomer, when waived. — In an action or special proceeding brought by or against a corporation, the defendant is deemed to have waived any mistake in the statement of the corporate name, unless the mis- nomer is pleaded in the answer or other pleading in the defendant's behalf. Miscellaneous trial provisions. § 237. Challenge for special cause. — The fact that a juror is in the employ of a party to the action, or, if a JUSTICE COURT ACT PROVISIONS 353 party to the action is a corporation, that he is an employee thereof or a shareholder or stockholder therein, or in actions for damages for injuries to person or prop- erty, that he is a shareholder, stockholder, director, officer or employee, or in any manner interested, in any insurance company issuing policies for protection against liability for damages for injury to person or property, shall constitute a good ground for a challenge to the favor as to such juror. § 253. When proof of corporate existence unneces- sary. — In an action brought by or against a corporation the plaintiflf need not prove upon the trial the existence of the corporation, unless the answer is verified and con- tains an affirmative allegation that the plaintiff, or the defendant, as the case may be, is not a corporation. Garnishment. § 300. Garnishee proceedings. — Where a judgment has been recovered in .a court not of record and where an execution issued upon sa'id judgment has been returned wholly or partly unsatisfied, and where any wages, debts, earnings, salary, income from trust funds or profits are due and owing to the judgment debtor or shall thereafter become due and owing to him, to the amount of twelve dollars or more per week, the judg- ment creditor may apply to a judge or justice of such court without notice to the judgment debtor, and upon satisfactory proof of such facts by affidavits or other- wise, the judge or justice must grant an order directing that an execution issue against the wages, debts, earn- ings, salary, income from trust funds or profits of said judgment debtor, and on presentation of such execution by the officer to whom delivered for collection to the person or persons from whom such wages, debts, earn- ings, salary, income from trust funds or profits are due and owing, or may thereafter become due and owing to the judarment debtor, said execution shall become a 23 354 JUSTICE COURT ACT PROVISIONS lien and a continuing levy upon the wages, earnings, debts, salary, income from trust funds or profits due or to become due to said judgment debtor to the amount specified therein which shall not exceed ten per centum thereof, and said levy shall be a continuing levy until said execution and the expenses thereof are fully satis- fied and paid or until modified as hereinafter provided, but only one such execution against the wages, debts, earnings, salary, income from trust funds or profits of said judgment debtor shall be satisfied at one time and where more than one such execution has been issued or shall be issued pursuant to the provisions of this section or of any other law against the same judgment debtor, they shall be satisfied in the order of priority in which such executions are presented to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing. It shall be the duty of any person or corporation, municipal or otherwise, to whom said execution shall be presented, and who shall at such time be indebted to the judgment debtor named in such execution, or who shall become indebted to such judgment debtor in the future, and while said execution shall remain a lien upon said indebtedness, to pay over to the officer presenting the same such amount of such indebtedness as such execution shall prescribe until said execution shall be wholly satisfied, and such payment shaU be a bar to any action therefor by any such judgment debtor. If such person or corporation, municipal or otherwise, to whom said execution shall be presented shall fail, or refuse to pay over to said officer presenting said execution, the percentage o^said indebtedness, he shall be liable to an action therefor by the judgment creditor named in such execution, and the amount so recovered by such judg- ment creditor shall be applied towards the payment of said execution. Either party may apply at any time to the judge or justice issuing the same, or to the county judge of the county, and in any county where there is no county judge, to any justice of the city court upon JUSTICE COURT ACT PROVISIONS 355 such notice to the other party as such court, judge, or justice shall direct for a modification of said execution, and upon such hearing the said court, judge or justice may make such modification of said execution as shall be deemed just, and such execution as so modified shall continue in full force and effect until fully paid and satisfied, or until further modified as herein provided. This section, so far as it relates to wages and salary, due and owing or to become due and owing to the judg- ment debtor, shall not apply to judgments recovered more than ten years prior to September first, nineteen hundred and eight, nor to judgments heretofore or here- after recovered upon such judgments. * * * § 315. Security for costs where plaintiff is foreign corporation. — The defendant in an action brought in a justice's court may require security for costs to be given where the plaintiff is a foreign corporation. * * * Summary proceedings. § 390. Precept; how served. — The precept must be served as follows: I. By delivering to the person to whom it is directed, or, if it is directed to a corporation, to an officer of the corporation upon whom a summons issued out of the supreme court in an action against the corporation might be served, a copy of the precept together with a copy of the petition and at the same time showing him the original precept. * ****** 3. Where service cannot with reasonable diligence be made as prescribed in either of the foregoing subdivi- sions of this section, by affixing a copy of the precept and petition upon a conspicuous part of the property. If the precept is returnable on the day on which it is issued, it must be served at least two hours before the hour at which it is returnable; in every other case, it must be served at least two days before the day on which it is returnable. 356 PENAL LAW PROVISIONS PENAL LAW PROVISIONS. Laws of 1909, Chapter 88, constituting Ch^ter 40 of the Consoli- dated Laws. § 280. Corporations and voluntary associations not to practice law. — It shall be unlawful for any corporation or voluntary association to practice or appear as an at- torney-at-law for any person other than itself in any court in this state or before any judicial body, or to make it a business to practice as an attorney--at-law, for any person other than itself, in any of said courts or to hold itself out to the public as being entitled to practice law, or render or furnish legal services or advice, or to furnish attorneys or counsel or to render legal services of any kind in actions or proceedings of any nature or in any other way or manner, or in any other manner to assume to be entitled to practice law or to assume, use or advertise the title of lawyer or attorney, attorney-at- law, or equivalent terms in any language in such man- ner as to convey the impression that it is entitled to prac- tice law, or to furnish legal advice, services or counsel, or to advertise that either alone or together with or by or through any person, whether a duly and regularly ad- mitted attorney-at-law, or not, it has, owns, conducts or maintains a law office or an office for the practice of law, or for furnishing legal advice, services or counsel. It shall be unlawful further for any corporation or volun- tary association to solicit itself or by or through its offi- cers, agent^or employees any claim or demand for the purpose of bringing an action thereon or of representing Only those sections of the Penal Law pertaining to corporations generally are given in this book. See Penal Law, §§ 290-302, in- clusive, and § 889, relating to Banking, §§ 1190-1202, inclusive, relating to Insurance, and §§ 1980-1991, inclusive, relating to Bailroads. PENAL LAW PROVISIONS 357 as attorney-at-law, or for furnishing legal advice, serv- ices or counsel to a person sued or about to be sued in any action or proceeding or against whom an action or proceeding has been or is about to be brought, or who may be affected by any action or proceeding which has been or may be instituted in any court or before any judicial body, or for the purpose of so representing any person in the pursuit of any civil remedy. Any corpora- tion or voluntary association violating the provisions of this section shall be liable to a fine of not more than five thousand dollars and every officer, trustee, director, agent or employee of such corporation or voluntary as- sociation who directly or indirectly engages in any of the acts herein prohibited or assists such corporation or voluntary association to do such prohibited acts is guilty of a misdemeanor. The fact that such officer, trustee, director, agent or employee shall be a duly and regularly admitted attorney-at-law shall not be held to permit or allow any such corporation or voluntary association to do the acts prohibited herein nor shall such fact be a defense upon the trial of any of the persons mentioned herein for a violation of the provisions of this section. This section shall not apply to any corporation or vol- untary association lawfully engaged in a business au- thorized by the provisions of any existing statute, nor to a corporation or voluntary association lawfully engaged in the examination and insuring of titles to real prop- erty, nor shall it prohibit a corporation or voluntary as- sociation from employing an attorney or attorneys in and about its own immediate affairs or in any litigation to which it is or may be a party, nor shall it apply to organizations organized for benevolent or charitable pur- poses, or for the purpose of assisting persons without means in the pursuit of any civil remedy, whose exist- ence, organization or incorporation may be approved by the appellate division of the supreme court of the depart- ment in which the principal office of said corporation or voluntary association may be located. Nothing herein contained shall be construed to pre- 358 PENAL LAW PROVISIONS vent a corporation from furnishing to any person, law- fully engaged in the practice of the law, such information or such clerical services in and about his professional work as, except for the provisions of this section, may be lawful, provided that at all times the lawyer receiv- ing such information or such services shall maintain full professional and direct responsibility to his clients for the information and services so received. But no corporation shall be permitted to render any services which cannot lawfully be rendered by a person not admitted to practice law in this state nor to solicit directly or indirectly professional employment for a lawyer. Added by L. 1909, Ch. 483; amended by L. 1911, Ch. 317. The last paragraph was added by L. 1916, ch. 254. See §§ 274-6, Penal Law. See 198 N. Y. 479; 144 App. Div. 107; 134 App. Div. 350. § 421. Untrue and misleading advertisements. — Any person, firm, corporation or association, or agent or em- ployee thereof who, with intent to sell or in any wise dispose of merchandise, real estate, securities, service, or anything offered by such person, firm, corporation, or association, or agent or employee thereof, directly or indirectly, to the public for sale or distribution, or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or an interest therein, makes, publishes, disseminates, circulates, or places before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated, or placed before the oublic, in this state, in a newspaper, magazine or other publication, or in the form of a book, notice, circular, pamphlet, letter, hand bill, poster, bill, sign, placard, card, label, or tag, or in any other way, an advertisement, announcement or statement of any sort regarding merchandise, securities, service or anything so offered to the public which advertisement contains any assertion, representation or statement of fact which PENAL LAW PBOVISIONS 359 is untrue, deceptive or misleading, shall be guilty of a misdemeanor. Repealed and re-enacted by L. 1915, Oh. 569; amended by L. 1931, Ch. sao. § 430. Marking articles m,ade of linen. — Any person, firm, corporation or association who makes or sells or offers to sell or dispose of, or has in his or its possession, with intent to sell or dispose of, any collars or cuffs marked, stamped, or branded with the words " linen," " pure linen " or " all linen " or incased or inclosed in any box, package, cover or wrapper or other thing in, by or with which the said article is packed, inclosed or other- wise prepared for sale or disposition, having thereupon any engraving or printed label, stamp, imprint, mark, or trade-mark, indicating or denoting by such marking, stamping, branding, engraving or printing, that such article is " linen," " pure linen," or " all linen," unless the material of which the said collars or cuffs are manu- factured contains at least one fold or ply which has a flax thread in both its warp and filling, is guilty of a mis- demeanor. § 431. Marking articles made of gold. — Any person, firm, corporation or association who or which makes or sells or offers to sell or dispose of, or has in his or its possession with intent to sell or dispose of, any article of merchandise, constructed in whole or in part of gold or of any alloy of gold and having stamped, branded, engraved or imprinted thereon any mark indicating or designed or intended to indicate that the gold or alloy of gold in such article is of a greater degree or karat of fineness by more than one karat than the actual quality or fineness of such gold or alloy, is guily of a misdemeanor.* § 432. Illegal charges for elevating, receiving or dis- charging grain. — A person who charges for elevating. * See §§ 952-a to g, inclusive, Code of Cri initial Procedure. 360 PENAL LAW PROVISIONS receiving or discharging grain by means of floating or stationary elevators a greater sum than is allowed by law is guilty of a misdemeanor. § 433- Sale of agricultural products on commission. — A person who violates any provision of section three hundred and ninety-seven of the general business law is guilty of a misdemeanor. § 434. Concealing foreign matter in merchandise. — A person who, with intent to defraud, while putting up in a barrel, bag, bale, box, or other package, cotton, hops, hay, or any other article of merchandise whatever, usually sold by weight in such packages, places or con- ceals therein any other substance or thing whatever, in a case where special provision for the punishment thereof is not otherwise made by statute, is guilty of a misdemeanor. § 435- False labels. — A person, who, with intent to defraud : 1. Puts upon an article of merchandise, or upon a cask, bottle, stopper, vessel, case, cover, wrapper, pack- age, band, ticket, label, or other thing, containing or covering such an article, or with which such an article is intended to be sold, or is sold, any false description or other indication of or respecting the kind, number, quantity, weight or measure of such article, or any part thereof, or the place or country where it was manu- factured or produced or the quality or grade of any such article, if the quality or grade thereof is required by law to be marked, branded or otherwise indicated on or with such article ;%)r, 2. Sells or ofifers for sale an article, which to his knowledge is falsely described or indicated upon any such package, or vessel containing the same, or label thereupon, in any of the particulars specified; or, 3. Sells or exposes for sale any goods in bulk to which no name or trade-mark shall be attached, and orally or PENAL LAW PROVISIONS 361 Otherwise represents that such goods are the manufac- ture or production of some other than the actual manu- facturer or producer, in a case where the punishment for such of5fense is not specially provided for otherwise by statute; or, 4. Sells or exposes for sale any meat or meat prepara- tion and falsely represents the same to be kosher, or as having been prepared under and of a product or products sanctioned by the orthodox Hebrew religious require- ments ; or falsely represents any food product or the con- tents of any package or container to be so constituted and prepared, by having or permitting to be inscribed thereon the word " kosher " in any language. Is guilty of a misdemeanor. Amended by L. 1915, Ch. 233. § 436. Using false marks as to manufacture. — A per- son who, with intent to defraud or to enable another to defraud any person, manufactures or knowingly sells or causes tb be manufactured or sold, any article, marked, stamped or branded or incased or inclosed in any box, bottle or wrapper, having thereupon any engraving or printed label, stamp, imprint, mark or trade-mark which article is not the manufacture, workmanship or produc- tion of the person named, indicated or denoted by such marking, stamping or branding, or by or upon such engraving, printed label, stamp, imprint, mark or trade- mark, is guilty of a misdemeanor. § 437. Penalty for selling half wine not labeled.— A person who sells, offers for sale or manufactures with intent to sell, any wine known as " half wine," which is not stamped, marked or labeled as required by law, is guilty of a misdemeanor. § 438. Skimmed milk. — A person who sells or offers for sale, milk from which the whole or a part of the cream has been skimmed or removed, without disclosinof the fact, or having a mark or label, plainly and legibly 362 PENAL LAW PROVISIONS Stating the fact, conspicuously affixed to every can or vessel containing the same, under circumstances not constituting an offense, for the punishment of which provision is otherwise specially made by statute, is guilty of a misdemeanor. § 439. Corrupt influencing of agents, employees or ser- vants. — Whoever gives, offers or promises to an agent, employee or servant, any gift or gratuity whatever, with- out the knowledge and consent of the principal, employer or master of such agent, employee or servant, with intent to influence his action in relation to his principal's, em- ployer's or master's business; or an agent, employee or servant who without the knowledge and consent of his principal, employer or master, requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to himself, under an agreement or with an understanding that he shall act in any particular manner to his principal's, employer's or master's business; or an agent, employee or servant, who, being authorized to pro- cure materials, supplies or other articles either by pur- chase or contract for his principal, employer or master, or to employ service or labor for his principal, employer or master, receives directly or indirectly, for himself or for another, a commission, discount or bonus from the person who makes such sale or contract, or furnishes such materials, supplies or other articles, or from a person who renders such service or labor; and any per- son who gives or offers such an agent, employee or servant such commission, discount or bonus shall be guilty of a misdemeanor and shall be punished by a fine of not less than ten dollars nor more than five hundred dollars, or h^ such fine and by imprisonment for not more than one year. See 150 App. Div. 478; 130 N. Y. Supp. 170; 80 Misc. 312. § 440. Conducting business under assumed name. — I. No person or persons shall hereafter carry on or con- PENAL LAW PROVISIONS 363 duct or transact business in this state under any assumed name or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact or intend to conduct or transact such business, a certificate setting forth the name under which such business is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons conducting or trans- acting the same, with the post-office address or addresses of said person or persons, and the age of any who may be infants. Said certificate shall be executed and duly acknowledged by the person or, if there be more than one, by all of the persons so conducting, or intending to conduct said business. No person or persons shall hereafter use, or file a certificate for the use of, any family name, or names or colorable simulation thereof to carry on or conduct or transact business in this state unless the name, or one of the names, so used or in- tended to be used is the true or real name of the person or of one of the persons conducting or intending to con- duct said business, or said person or persons are succes- sors in interest to the person or persons theretofore using such name or names to carry on or conduct or transact business, in which case the certificate filed shall so state. 2. Persons conducting such business under an assumed name, or under any such designation referred to in sub- division one, on September first, nineteen hundred, shall file ■ such certificate as hereinbefore prescribed, within thirty days after that date, and persons thereafter con- ducting or transacting business as aforesaid shall, before commencing said business, file such certificate in the manner hereinbefore prescribed. 3. The several county clerks of this state shall keep an alphabetical index of all persons filing certificates, pro- vided for herein, and for the indexing and filing of such 364 PENAL LAW PKOVISIONS certificates, they shall receive a fee of twenty-five cents. A copy of such certificate duly certified to by the county clerk in whose office the same shall be filed shall be pre- sumptive evidence in all courts of law in this state of the facts therein contained. » 4. This section shall in no way afifect or apply to any corporation duly organized under the laws of this state, or to any corporation organized under the laws of any other state and lawfully doing business in this state, nor shall this section be deemed or construed to prevent the lawful use of a partnership name or designation, pro- vided that such partnership name or designation shall include the true or real name of at least one of such persons transacting such business. 5. Any person or persons carrying on, conducting or transacting business as aforesaid, who shall fail to comply with the provisions of this section shall be guilty of a misdemeanor. 8ee 8 Misc. 2. Subdivision 1 was amended by L. 1919, Ch. 224. § 441. Producing unpublished, undedicated or copy- righted opera or dramatic composition, without consent of owner. — Any person who causes to be publicly per- formed or represented for profit any unpublished, un- dedicated or copyrighted dramatic composition, or musical composition known as an opera, without the consent of its owner or proprietor, or who, knowing that such dramatic or musical composition is unpublished, undedicated or copyrighted and without the consent of its owner, or proprietor, permits, aids or takes part in such a performance or representation, shall be guilty of a misdemeanor. § 442. Provisions when property is purchased on credit by aid of written statement of purchaser's ability to pay. — Whenever property shall be purchased by aid of a statement relating to the purchaser's means or ability to pay, made in writing and signed by the party to be PENAI, LAW PROVISIONS 365 charged, and in said statement the party to be charged shall state that he conducts a specified kind of business and keeps books of account of said business, then, if at the expiration of any term of credit obtained by him in so purchasing said property he shall fail to pay for the same, he shall at all times during the period of ninety days subsequent to such failure to pay, upon the request of the persons from whom said property was purchased, or their agents duly accredited in writing, produce within ten days after such request is made his said books of account and each and every one of them mentioned or described in said statement and permit the persons from whom said property was purchased, or their agents duly accredited in writing, to fully examine such books of account and each and every one of them mentioned or described in said statement, and to make copies of any part thereof. Upon such request being made, failure to so produce within ten days said books of account and each and every one of them mentioned or described in said statement shall be presumptive evidence that each and every pretense relating to the purchaser's means or ability to pay in said statemeiVt contained were false at the time of making said statement and were known to the purchaser to be false. § 531. Coercion by employers, — Any person or em- ployer of labor, and any person of any corporation on behalf of such corporation, who shall hereafter coerce or compel any person, employee, laborer or mechanic, to enter into an agreement, either written or verbal from such person, employee, laborer or mechanic, not to join of become a member of any labor organization, as a con- dition of such person securing employment, or continu- ing in the employment of any such person, employer or corporation, shall be deemed guilty of a misdemeanor. The penalty for such misdemeanor shall be imprison- ment in a penal institution for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment. 366 PENAL LAW PROVISIONS § 584. Witnesses' privileges. — No person shall be ex- cused from attending and testffying, or producing any boojcs, papers or other documents before any court, magistrate, or referee, upon any investigation, proceed- ing or trial, for a violation of any of the provisions of this article, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, re- quired of him may tend to convict him of a crime or to subject him to a penalty or *for forfeiture; but no per- son shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation, proceeding or trial. Added by L. 1910, C!h. 395. ' So in original. PENAL LAW PROVISIONS 367 ARTICLE 64 Corporations Section 660. Frauds in the organization of corporations. 661. PYauds in procuring organization of corporations. 663. Fraudulent issue of stoclcs and bonds. 663. Acting for foreign corporations not authorized to do business in this state. 664. Misconduct of oflScera and directors of stock corpo- rations. 665. Misconduct of directors, officers, agents and employees of corporations, 666. Unlawful use of certain titles in connection with cor- porate name. 667. Presumption of knowledge of corporate condition and business and of assent thereto by directors; defi- nitions. 668. Misconduct at corporate elections. 669. Misconduct of officers and agents of pipe-line corpo- rations. § 660. Frauds in the organization of corporations. — A person who : 1. Without authority subscribes the name of another to or inserts the name of another in any prospectus, circular or other advertisement or announcement of any corporation or joint-stock association existing or in- tended to be formed, with intent to permit the same to be published, and thereby to lead persons to believe that the person whose name is so subscribed is an officer, agent, member or promoter of such corporation or asso- ciation ; or, 2. Signs the name of a fictitious person to any sub- scription for or agreement to take stock in any corpora- tion, existing or proposed ; or, 3. Signs to any such subscription or agreement the name of any person, knowing that such person does not intend in good faith to comply with the terms thereof, or under any understanding or agreement, that the terms of 368 PENAL LAW PROVISIONS such subscription or agreement are not to be complied with or enforced, Is guilty of a misdemeanor. § 66 1. Frauds in procuring organiz*ation of corpora- tions. — An officer, agent or clerk of a corporation, or of persons proposing to organize a corporation, or to in- crease the capital stock of a corporation, who knowingly exhibits a false, forged or altered book, paper, voucher, security or other instrument of evidence to any public officer or board authorized by law to examine the organi- zation of such corporation, or to investigate its affairs, or to allow an increase of its capital, with intent to de- ceive such officer or board in respect thereto, is punish- able by imprisonment in a state prison not exceeding ten years. § 662. Fraudulent issue of stocks and bonds. — An officer, agent or other person in the service of any joint- stock company or corporation formed or existing under the laws of this state, or of the United States or of any state or territory thereof, or of any foreign government or country, who wilfully and knowingly, with intent to defraud : I. Sells, pledges or issues, or causes to be sold, pledged or issued, or signs or executes, or causes to be signed or executed with intent to sell, pledge or issue, or causes to be sold, pledged or issued, any certificate or instrument purporting to be a certificate or evidence of the owner- ship of any share or shares of such company or corpora- tion ,or any bond or evidence of debt, or writing purport- ing to be a bo^d or evidence of debt of such company or corporation, without being first thereto duly authorized by such company or corporation, or contrary to the charter or laws under which such corporation or company exists, or in excess of the power of such company or cor- poration or of the limit imposed by law or otherwise upon its power to create or issue stock or evidences of debt; or, PENAL LAW PBOVISIUNS 369 2. Reissues, sells, pledges or disposes of, or causes to be reissued, sold, pledged or disposed of, any sur- rendered or- canceled certificates, or other evidence of the transfer or ownership of any such share or shares. Is punishable by imprisonment for a term not exceed- ing seven years, or by a fine not exceeding three thousand dollars, or by both. § 663. Acting for foreign corporations not authorized to do business in this state. — Any person, or corporation, who: 1. Acts as agent or representative of any mortgage, loan or investment corporation or building and mutual loan corporation or association or co-operative savings and loan association organized outside of this state, while such mortgage, loan or investment corporation or build- ing and mutual loan corporation or association or co- operative savings and loan association shall not be au- thorized under a license of the superintendent of banks to do business in this state; or, 2. Acts as agent or representative in this state of a foreign corporation, other than a moneyed corporation, with the words "trust," "bank," "banking," "insur- ance," "assurance," " indemnity," " guarantee," " guar- anty," "savings," "investment," "loan," "benefit," or any other words or terms indicating, representing or holding out such company to be a moneyed corporation as a part of its name or corporate title, or who, in con- nection with such corporation or otherwise, shall put forth any sign containing said name, or who shall adver- tise or publish the said company as doing business in this state, directly or indirectly, through agents or other- wise, while such company shall not be authorized under a certificate procui'ed from the secretary of state pur- suant to section fifteen of the general corporation law to do business in this state. Is guilty of a misdemeanor. 24 370 PENAL LAW PBOVISIONS § 664. Misconduct of officers and directors of stock corporations. — ^A director of a stock corporation, who concurs in any vote or act of the directors of such cor- poration, or any of them, by which it is intended: 1. To make a dividend, except from the surplus profits arising from the business of the corporation, and in the cases and manner allowed by law; or, 2. To divide, withdraw, or in any manner pay to the stockholders, or any of them, any part of the capital stock of the corporation; or to reduce such capital stock with- out the consent of the legislature; or, 3. To discount or receive any note or other evidence of debt in payment of an instalment of capital stock actually called in, and required to be paid, or with intent to provide the means of making such payment; or, 4. To receive or discount any note or other evidence of debt with intent to enable any stockholder to with- draw any part of the money paid in by him on his stock ; or, 5. To apply any portion of the funds of such corpora- tion, except surplus profits, directly or indirectly, to the purchase of shares of its own stock. Is guilty of a misdemeanor. An officer or director of a stock corporation who: 6. Issues, participates in issuing, or concurs in a vote to issue any increase of its capital stock beyond the amount of the capital stock thereof, duly authorized by or in pursuance of law; or, 7. Sells, or agrees to sell, or is directly or indirectly interested in the sale of any share of stock of such cor- poration, or in any agreement to sell the same, unless at the time ofgsuch sale or agreement he is an actual owner of such share, Is guilty of a misdemeanor, punishable by imprison- ment for not less than six months, or by a fine not ex- ceeding five thousand dollars, or by both. See 207 N. Y. 591 j 145 App. Div. 355; 79 Misc. 441. PENAL LAW PROVISIONS 371 § 665. Misconduct of directors, officers, agents and employees of corporations. — A director, officer, agent or employee of any corporation or joint-stock association who: 1. Knowingly receives or possesses himself of any of its property otherwise than in payment for a just demand, and with intent to defraud, omits to make or to cause or direct to be made a full and true entry thereof in its books and accounts; or, 2. Makes or concurs in making any false entry, or concurs in omitting to make any material entry in its books or accounts; or, 3. Knowingly (a), concurs in making or publishing any. written report, exhibit or statement of its affairs or pecuniary condition containing any material statement which is false, or (b), omits or concurs in omitting any statement required by law to be contained therein; or, 4. Having the custody or control of its books, wilfully refuses or neglects to make any proper entry in the stock book of such corporation as required by law, or to ex- hibit or allow the same to be inspected, and extracts to be taken therefrom by any person entitled by law to inspect the same, or take extracts therefrom; or, 5. If a notice of an application for an injunction affect- ing the property or business of such joint-stock associa- tion or corporation is served upon him, omits to disclose the fact of such service and the time and place of such application to the other directors, officers and managers thereof; or, 6. Refuses or neglects to make any report or state- ment lawfully required by a public officer. Is guilty of a misdemeanor. § 666. Unlawful use of certain titles in connection with corporate name. — Any person, association or cor- poration, other than a moneyed corporation, who shall within this state directly or indirectly, or through agents or representatives transact business under, or in any- wise use a corporate name or a corporate title with the 372 PENAL LAW PROVISIONS words " trust," " bank," " banking," "insurance," " assur- ance," " indemnity," " guarantee," " guaranty," " sav- ings," " investment," " loan," " benefit," as a part of such name or title, is guilty of a misdemeanor; pro- vided, however, that any domestic corporation, other than a moneyed corporation, heretofore duly organized and heretofore duly authorized by law to use and on April twenty-ninth, nineteen hundred and four, lawfully using either or any of such words as a part of its lawful corporate title, may lawfully continue to use such cor- porate title, provided and if it, being a corporation other than a moneyed corporation, shall, wherever the name shall be printed, written, engraved or displayed, add, in legible English characters, of substantially the same size and style as the name, directly under the said name or immediately in connection therewith, wherever so used, the words " not a moneyed corporation." § 667. Presumption of knowledge of corporate condi- tion and business and of assent thereto by directors; definitions. — It is no defense to a prosecution for a vio- lation of the provisions of this article and article twenty- six, that the corporation is a foreign corporation, if it carries on business or keeps an ofHce therefor in this state. The term " director " as used in this article and article twenty-six includes any of the persons having, by law, the direction or management of the affairs of a corpora- tion, by whatever name described. A director of a corporation or joint-stock association is deemed to have such a knowledge of the affairs of the corporation or association as to enable him to determine whether any act, proceeding or omission of its directors is a violation of this article and article twenty-six. If present at a meeting of the directors at which any act, proceeding or omission of such directors in violation of this article and article twenty-six occurs, he must be deemed to have concurred therein, unless he at the time PENAI, LAW PROVISIONS 373 causes or in writing requires his dissent therefrom to be entered on the minutes of the directors. If absent from such meeting, he must be deemed to have con- curred in any such violation, if the facts constituting such violation appear on the record or minutes of the proceedings of the board of directors, and he remains a director of the corporation for six months thereafter without causing or in writing requiring his dissent from such violation to be entered on such record of minutes. See 147 App. Div. 443. § 668. Misconduct at corporate elections. — Any per- son who: 1. Being entitled to vote at any meeting of the stock- holders or bondholders or both of a stock corporation, sells his vote, or who issues a proxy to vote to any per- son for any sum of money or thing of value, except as expressly authorized by law; or, 2. Acts as an inspector of election at any such meeting and violates an oath taken by him in pursuance of law as such inspector, or violates the provisions of an oath required by law to be taken by him as such inspector, or is guilty of any dishonest or corrupt conduct as such inspector. Is guilty of a misdemeanor. § 66g. Misconduct of officers and agents of pipe-line corporations. — Any officer, agent or manager of a pipe- line corporation who: 1. Neglects or refuses to transport any product de- livered for transportation, or to accept and allow a de- livery thereof in the order of application, according to the general rules of the corporation, as provided by law ; or, 2. Charges, accepts or agrees to accept for such receipt, transportation and delivery, a sum different from the amount fixed by such regulations; or, 3. Allows or pays, or agrees to allow or pay, or suffers 374 PENAL LAW PROVISIONS to be allowed or paid or repaid, any draw-back, rebate or allowance, so that any person shall, by any device, have or procure any transportation of products over such pipe- line at a less rate or charge than is fixed in such regula- tions, ■• Is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or by imprisonment not exceeding six months, or by both. § 670. Misconduct by oiHcers and directors of life or casualty insurance corporations upon the co-operative or assessment plan or of fraternal beneficiary societies, orders or associations. — Any officer or director of a life or casualty insurance corporation upon the co-operative or assessment plan or of a fraternal beneficiary society, order or association, who shall sell his position as such officer or director for any money or valuable considera- tion, or who shall accept or receive, directly or indirectly, any money or valuable consideration for his resignation as such officer or director, shall be guilty of a felony if the money or valuable consideration accepted or received for the sale or resignation of such position as officer or director shall be more than five hundred dollars, and, if a less amount, shall be guilty of a misdemeanor. § 759. Refusal to permit employees to attend election. — A person or corporation who refuses to an employee entitled to vote at an election or town meeting, the privi- lege of attending thereat, as provided by the election Ijw, or subjects such employee to a penalty or reduction of wages because of the exercise of such privilege, is guilty of a misdemeanor. § 850. Extortion defined. — Extortion is the obtaining of property from another, or the obtaining the property of a corporation from an officer, agent or employee thereof, with his consent, induced by a wrongful use of force or fear, or under color of official right. PENAL LAW PROVISIONS 375 § 851. What threats may constitute extortion. — Fear, such as will constitute extortion, may be induced by an oral or written threat: i. To do an unlawful injury to the person or property of the individual threatened, or to any relative of his or to any member of his family or to a corporation of which he shall be an officer, stock- holder, employee or agent; or, 2. To accuse him, or any relative of his or any member of his family, of any crime ; or, 3. To expose, or impute to him, or any of them, any deformity or disgrace; or, 4. To expose any secret affecting him or any of them ; or, 5. To kidnap him or any relative of his or member of his family; or, 6. To injure his person or property or that of any relative of his or member of his family by the use of weapons or explosives. § 882. Falsely indicating person as corporate officer. — The false making or forging of an instrument or writ- ing, purporting to have been issued by or in behalf of a corporation or association, state or government, and bearing the pretended signature of any person, therein falsely indicated as an agent or officer of such corpora- tion, is forgery in the same degree, as if that person were in truth such officer or agent of the corporation or asso- ciation, state or government. § 889. Forgery in third degree. — A person who: 1. Being an officer or in the employment of a corpora- tion, association, partnership or individuals falsifies, or unlawfully and corruptly alters, erases, obliterates or destroys any accounts, books of account, records, or other writing, belonging to or appertaining to the business of the corporation, association or partnership or indivduals; or, 2. With intent to injure or defraud, shall falsely make, alter, forge or counterfeit, or shall cause, aid, abet, assist 376 PENAL LAW PKOVISlONS or Otherwise connive at, or be a party to the making, altering, forging or counterfeiting of any letter, telegram, or other written communication, paper, or instrument by which making, altering, forging or counterfeiting, any other person shall be in any manner injured in his good name, standing, position or general reputation; or, 3. Shall alter, or shall cause, aid, abet, or otherwise connive at, or be a party to the uttering of any letter, tele- gram, report or other written communication, paper or instrument purporting to have been written or signed by another person, or any paper purporting to be a copy of any such paper or writing where no original existed, which said letter, telegram, report or other written com- munication, paper or instrument, or paper purporting to be a copy thereof, as aforesaid, the person uttering the same shall know to be false, forged or counterfeited, and by the uttering of which the sentiments, opinions, con- duct, character, prospects, interests or rights of such other person shall be misrepresented or otherwise injuri- ously affected; or, 4. With intent to defraud,, shall forge, counterfeit or falsely alter and wrongfully utter any ticket, contract or other paper, or writing entitling, or purporting to entitle, the person whose name appears therein, or the holder or bearer thereof, to entrance upon the grounds or premises of any membership corporation, or being thereupon, to remain upon such grounds or premises ; or with like in- tent, shall use any such ticket, contract or other paper or writing, to effect an entrance or as evidence of his right to remain upon such grounds or premises; or, with like intent, shall sell, exchange or deliver, or keep or offer for sale, exchange or delivery, or receive upon any purchase, exchange or delivery, any such ticket, contract or other paper or writing, knowing the same to have been forged, counterfeited or falsely altered, Is guilty of forgery in the third degree. A person who, with intent to defraud or to conceal any larceny or misappropriation by any person of any money or property : PENAL LAW PKOVISIONS 377 1. Alters, erases, obliterates, or destroys an account, book of accounts, record, or writing, belonging to, or ap- pertaining to the business of, a corporation, association, public office or officer, partnership, or individual ; or, 2. Makes a false entry in any such account or book of accounts ; or, 3. Wilfully omits to make true entry- of any material particular in any such account or book of accounts, made, written, or kept by him or under his direction, Is guilty of forgery in the third degree. 4. The altering, erasing, obliterating, or destruction of any account, book of accounts, record, or writing, of the making of a false entry in an account, statement of finan- cial condition, or book of accounts, or the wilful omission of material entries in such account, statement or books of account, by any person, whether by his own hand or the hand of another, if made with intent to defraud creditors or to conceal a crime, or to conceal from creditors or stockholders or other persons interested matters mate- rially affecting the financial condition of any individual, corporation, association, or partnership; or to provide a basis for the obtaining of credit or property by or for such individual, corporation, association, or partnership, shall render such person guilty of forgery in the third degree, within the meaning of this section ; but this provision shall not apply to any clerk, bookkeeper, or other em- ployee, who, without personal profit or gain, merely ex- ecutes the orders of his employer. See 202 N. Y. 460; 140 App. Div. 592; 69 Misc. 551. § 890. Officer of corporation selling fraudulent shares. — An officer, agent or other person employed by any com- pany or corporation existing under the laws of this state, or of any other state or territory of the United States, or of any foreign government, who wilfully and with a de- sign to defraud, sells, pledges or issues, or causes to be sold, pledged or issued, or signs or procures to be signed with intent to sell, pledge or issue, or to be sold, pledged 378 PENAL LAW PROVISIONS or issued, a false, forged or fraudulent paper, writing or instrument, being or purporting to be a script, certificate or other evidence of the ownership or transfer of any share or shares of the capital stock of such company or corporation, or a bond or other evidence of debt of such company or corporation, or a certificate or other evidence of the ownership or of the transfer of any such bond or other evidence of debt, is guilty of forgery in the third degree, and upon conviction, in addition to the punish- ment prescribed in section eight hundred and ninety-three _^ of ':his chapter for that oflfense, may also be sentenced to pay a fine not exceeding three thousand dollars. § 893. Punishment for forgery in third degree. — For- gery in the third degree is punishable by imprisonment for not more than five years.* § 926. False rumors as to stocks, bonds or public funds. — A person, who, with intent to aflfect the market price of the public funds of this state or of the United States, or of any state or territory thereof, or of a foreign country or government, or of the stocks, bonds, or other evidences of debt of a corporation or association, or the market price of gold or silver coin or bullion, or any mer- chandise or commodity whatever: 1. Without lawful authority, falsely signs the name of an officer of a corporation, or of any other person to a letter, message, or other paper; or, 2. Utters or circulates such a letter, message, or paper, knowing that the same has been so falsely signed ; or, 3. Knowingly circulates any false statement, rumor, or intelligence Is punishable by a fine of not more than five thousand dollars, or by imprisonment for not more than three years, or both. Derivation.— Penal Code, § 435. •See § 890, tte. PENAL LAW PROVISIONS 379 § 950. False statements in regard to employment. — Any person, firm, association or corporation, or any em- ployee or agent thereof, who makes to any person fur- nishing or seeking employment any statement which is false, knowing the same to be false, in regard to any em- ployment, work or situation, its nature, location, dura- tion, wages, or salary attached thereto, or the circum^ stances surrounding the said employment, work, or situa- tion, or who shall olifer or hold himself out as in a posi- tion to secure or furnish employment without having an order therefor or such employment to be filled or shall misrepresent any other material matter in connection with said employment, work, or situation, and by reason of such statement, offer, holding out or misrepresenta- tion, any person shall seek the employment, work or sit- uation, in respect to which such statement, offer, holding out or misrepresentation was made, shall be guilty of a misdemeanor. § 951, Reporting or publishing fictitious transactions in securities. — A person who, with intent to deceive, re- ports or publishes, or causes to be reported or published as a purchase or sale of the stocks, bonds or other evi- dences of debt of a corporation, company or association, any transaction therein, whereby no actual change ol ownership or interest is effected, is guilty of a felony, punishable by a fine of not more than £ve thousand dol- lars, or by imprisonment for not more than two years, or by both. § 952. False statement or advertisement as to securi- ties. — Any person, who, with intent to deceive, makes, issues, or publishes, or causes to be made, issued or pub- lished, any statement or advertisement as to the value or as to facts affecting the value of the stocks, bonds or other evidences of debt of a corporation, company or asso- ciation, or as to the financial condition of facts affecting the financial condition of any corporation, company or 380 PENAL LAW PROVISIONS association which has issued, is issuing or is about to issue stocks, bonds or other evidences of debt, and who knows, or has reasonable ground to believe that any material representation, prediction or promise made in such statement or advertisement is false, is guilty of a felony, punishable by a fine of not more than five thou- sand dollars, or by imprisonment for not more than three years, or by both. § 953- Manipulation of prices of securities. — Any per- son, who inflates, depresses, or causes fluctuations in, or attempts to inflate, depress or cause fluctuations in, or combines or conspires with any other person or persons to inflate, depress or cause fluctuations in, the market prices of the stocks, bonds or other evidences of debt of a corporation, company or association, or of an issue or any part of an issue of the stock, bonds or evidences of debt of a corporation, company or association, by means of pretended purchases and sales thereof, or by any other fictitious transactions or devices, for or on account of such person or of any other person, or for or on account of the persons so combining or conspiring, whereby either in whole or in part a simultaneous change of ownership of or interest in such stocks, bonds or evidences of debt, or of such issue or part of an issue thereof, is not effected, is guilty of a felony, punishable by a fine of not more than five thousand dollars or by imprisonment for not more than two years, or by both. A pretended purchase or sale of any such stocks, bonds or other evidences of debt whereby, in whole or in part, np simultaneous change of ownership or interest therein is effected, s}|^ll be prima facie evidence of the violation of this section by the person or persons taking part in the transaction of such pretended purchase or sale. § 970-a. The sale of gambling implements and devices prohibited. — No person, corporation, copartnership or association shall lease, rent, let on shares, sell, expose for PENAL LAW PROVISIONS 381 sale or offer for sale any machine, apparatus or device, into which may be inserted any piece of money or other object, and from which, as a result of such insertion and the application of physical or mechanical force, may issue any piece or pieces of money, or any check or memoranda calling- for any money; nor any machine or device of any kind or nature by the operation of which there is an ele- ment of chance for the winning or losing of money or other things of value. Any person, corporation, copart- nership or association violating the provisions of this sec- tion shall be guilty of a misdemeanor. § 1271. Hours of labor to be required. — Any person or corporation : 1. Who, contracting with the state or a municipal cor- poration, shall require more than eight hours' work for a day's labor; or, 2. Who shall require more than ten hours labor, in- cluding one-half hour for dinner, to be performed within twelve consecutive hours, by the employees of street sur- face and elevated railway owned or operated by corpora- tions whose main line of travel or routes lie principally within the corporate limits of cities of more than one hun- dred thousand inhabitants; or, 3. Who shall require the employees of a corporation owning or operating a brickyard to work contrary to the requirements of section one hundred and sixty-three of the labor law; or, 4. Who shall require or permit any employee engaged in or connected with the movement of any train of a cor- poration operating a line of railroad of thirty miles in length, or over, in whole or in part within the state, to remain on duty more than sixteen consecutive hours; or to require or permit any such employee who has been on duty sixteen consecutive hours to go on duty without having had at least ten hours off duty; or to require or permit any such employee who has been on duty sixteen hours in the aggregate in any twenty-four hour period 382 PENAL LAW PROVISIONS to continue on duty or to go on duty without having had at least eight hours off duty within such twenty -four hour period; except when by casualty occurring after such employee has started on his trip, or by unknown casualty occurring before he started on his trip, and ex- cept when by accident or unexpected delay of trains scheduled to make connection with the train on which such employee is serving, he is prevented from reaching his terminal; Is guilty of a misdemeanor, and on conviction therefor shall be punished by a fine of not less than five hundred nor more than one thousand dollars for each offense. Amended by L. 1916, Ch. 151; L. 1921, Ch. 68. See 143 App. Div. 886. § 1272. Payment of wages. — A corporation or joint- ptock association or person carrying on the business thereof, by lease or otherwise, who does not pay the wages of all its employees in accordance with the pro- visions of the labor law, is guilty of a misdemeanor, and upon conviction therefor, shall be fined not less than one hundred nor more than ten thousand dollars for each offense. An indictment of a person or corporation oper- ating a steam surface railroad for an offense specified in this section may be found and tried in any county within the state in which such railroad ran at the time of such offense. § 1275. Violations of provisions of labor law; the in- dustrial code; the rules, regulations or orders of the industrial commissioner and industrial board. — Any per- son who vioiates or does not comply with any provision of the labor law, any provision of the industrial code, any rule, regulation or lawful order of the industrial commis- sioner or industrial board, and any person who know- ingly makes a false statement in or in relation to any ap- plication made for an employment certificate as to any matter required by the labor law to appear in any affi- PENAL LAW PBOVISIONS 383 davit, record, transcript or certifica,te therein provided for, is guilty of a misdemeanor and upon conviction shall be punished, except as in this chapter otherwise provided, for a first offense by a fine of not less than twenty nor more than fifty dollars; for a second offense by a fine of not less than fifty nor more than two hundred and fifty dollars, or by imprisonment for not more than thirty days or by both such fine and imprisonment ; for a third offense by a fine of not less than two hundred and fifty dollars, or by imprisonment for not more than sixty days, or by both such fine and imprisonment. Amended by L. 1911, Ch. 749; L. 1912, Ch. 383; L. 1913, Ch. 349; L. 1931, Ch. 68. See 156 App. Div. 456; 74 Misc. 356. § 1276. Negligently furnishing insecure scaffolding. — A person or corporation employing or directing another to do or perform any labor in the erection, repairing, al- tering or painting, an^ house, building or structure within this state, who knowingly or negligently furnishes or erects or causes to be furnished or erected for the per- formance of such labor, unsafe, unsuitable or improper scaffolding, hoists, stays, ladders or other mechanical contrivances ; or who hinders or obstructs any officer de- tailed to inspect the same, destroys or defaces any notice posted thereon, or permits the use thereof after the same has been declared unsafe by such officer contrary to the provisions of article ten of the labor law, is guilty of a misdemeanor. Amended by L. 1921, Ch. 68. § 1277. Neglect to complete or plank floors of build- ings constructed in cities. — A person, constructing a building in a city, as owner or contractor, who violates the provisions of article ten of the labor law, relating to the completing or laying of floors, or the planking of such floors or tiers of beams as the work of construction pro- gresses, is guilty of a misdemeanor, and upon conviction 384 PENAL, LAW PROVISIONS therefor shall be punished by a fine for each offense of not less than twenty-five nor more than two hundred dollars. Amended by L. 1921, C!h. 68. § 131 1. Custody in trust of funds for purchase of Cer- tain real property. — Any person, firm or. corporation, who, in the City of New York, takes, collects, receives, keeps or withholds any money, property, liberty bond, evidence of debt or contract, article of value of any nature or thing in action or possession, in amount or amounts of one hundred dollars or less in value, either in instal- ments or otherwise on account of promise or agreement, wherever made, for the sale of any real property in a tract of land, wherever located, subdivided into lots, has and holds such moneys or other property, and any or all of it, in his or its possession, custody or control as bailee and trustee for the special purpose of agd until due delivery of deed or title pursuant to such promise or agreement. Added by L. 1919, Ch. 521. § 1312. Misappropriation of funds held in trust for cer- tain real property. — The failure to make or cause to be made, when due, delivery of deed or title as set out in the preceding section is presumptive evidence of misap- propriation. Any alienation or any loss or impairment by mortgage or other lien or by foreclosure, by tax sale ■ or by tax lien sale, or otherwise, of good title to such real property by the vendor, or those by whom the vendor claims, is presumptive evidence of knowledge and intent by such bailee and trustee. Added by L. 1919, Ch. 521. § 1313. Assisting misappropriations of trust funds for certain real property sales. — Any person who, as em- ployee, agent, officer or director of a bailee and trustee, referred to in sections thirteen hundred and eleven and PENAL lAW PROVISIOlirS 385 thirteen hundred and twelve of this act, or of any agent of such bailee and trustee, who directly or indirectly en- gages in any misappropriation by himself or by such bailee and trustee or assists such bailee and trustee to commit misappropriation is guilty of a misdemeanor. Added by L. 1919, Ch. 521. § I353' Furnishing false information. — Any person who knowingly and wilfully states, delivers or transmits by any means whatever to any manager, editor, pub- lisher, reporter or other employee of a publisher of any newspaper, magazine, publication, periodical or serial, any false and untrue statement of a fact concerning any person or corporation, with intent that the same shall be published, is guilty of misdemeanor. Added by L. 1930, Ch. 569. § 1932. Punishment of corporation convicted of felony. — In all cases where a corporation is convicted of an offense for the commission of which a natural person would be punishable with imprisonment, as for a felony, such corporation is punishable by a fine of not more than five thousand dollars. Former § 13, Penal Code, in part, as amended by L. 1893, Oh. 318. For remainder of § 13, see § 1931, Penal Law. 25 386 CODE OF CRIMINAL PKOCEDUEE PROVISIONS CODE OF CRIMINAL PROCEDURE PROVISIONS. § 335- Plea of guilty, how put in.^ — A plea of guilty can only be put in by the defendant hiipself in open court, except upon an indictment against a corporation, in which case it may be put in by counsel. § 675. Summons upon an information or presentment against a corporation, by whom issued, and when return- able. — Upon an information against a corporation, the magistrate must issue a summons, signed by him, with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge; the time to be not less than ten days after the issuing of the summons. § 676. Form of the summons. — The summons must be in substantially the following form : " County of Albany [or as the case may be]. " In the name of the people of the state of New York : " To the [naming the corporation] . " You are hereby summoned to appear before me, at [naming the place], on [specifying the day and hour], to answer a charge made against you, upon the information of A. B., for [designating the oiifense, generally]. " Dated at the city [or ' town '] of = , the day of , 18 — . G. H., Justice of the peace " [or as the case may be]. § 677. Wlien and how served. — The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president, or other head of the cor- poration, or to the secretary, cashier, or managing agent thereof. CODE OF CRIMINAL PBOCEDUKE PROVISIONS 387 § 678. Examination of the charge. — At the time ap- pointed in the summons, the magistrate must proceed to investigate the charge, in the same manner as in the case of a natural person brought before him, so far as those proceedings are applicable. § 679. Certificate of the magistrate, and return thereof with the depositions. — After hearing the proofs, the mag- istrate must certify upon the depositions, either that there is or is not sufificient cause to believe the corporation guilty of the offense charged, and must return the deposi- tions and certificate, in the manner prescribed in section 221. § 680. Grand jury may proceed as in the case of a natural person. — If the magistrate return a certificate that there is sufficient cause to believe the corporation guilty of the offense charged, the grand jury may proceed thereon, as in the case of a natural person held to answer. § 681. Appearance, and plea to indictment, and pro- ceedings thereon. — When an indictment is filed against any corporation, such corporation must be arraigned thereon, and the court acquires jurisdiction over the cor- poration, in the manner following: I. The clerk of the court wherein such indictment is found, or to which it is sent or removed, or the district attorney of the county, must issue a summons signed by him with his name of office, requiring such corporation to appear and answer the indictment by a demurrer or writ- ten plea to be verified in like manner as a pleading in a civil action, at a time and place to be specified in such summons, such time to be not less than five days after the issue thereof. The summons may be substantially in the following form : 388 CODE OF CRIMINAL PROCEDURE PROVISIONS Supreme Court, county of (state the proper county or court, as the case may be). The People of the State of New York vs. * The A. B. Company. You are hereby summoned to appear in this court and, by demurrer or plea in writing duly verified, answer an indictment filed against you by the grand jury of this county, on the day of , charging you with the crime of (designating the oflfense generally), at a term of the Supreme Court (or as the case may be) of this county, at (naming the place) on (stating the day and hour), and in case of your failure to so appear and answer, judgment will be pronounced against you. Dated at the city (or town) of the day of , i8 . C. D., District Attorney. (or by order of the court, E. F., clerk, as the case may be) . 2. The summons must be served at least four days before the appearance fixed therein, in the same manner as is provided for the service of a summons upon a cor- poration in a civil action ; and if the corporation does not appear in the manner and at the time and place specified in the summons, judgment must be pronounced against it. 3. Nothing contained in this section shall be construed as preventing the appearance of a corporation by counsel to answer an indictment, without the issuance or service of the summons as above provided. And when an indict- ment shall have been filed against a corporation it may voluntarily %ppear and answer the same by counsel duly authorized to so appear for it ; in which case the court acquires full jurisdiction over the corporation in the same manner as if the summons had been issued and served. § 682. Fine on conviction, how collected. — When a fine is imposed upon a corporation upon conviction, it may be CODE OF CRIMINAL PROCEDURE PROVISIONS 389 collected in the same manner as a judgment in a civil action, and if an execution issued upon such judgment be returned unsatisfied, the district attorney of the county may thereupon bring an action in the name of the people of the state of New York, to procure a judgment seques- trating the property of the corporation, as provided by the general . corporation law. See §§ dSda-g, inclusive, concerning procedure in caEes of marked sterling, "coin," coin silver, gold and metal. 390 LABOR LAW PBOVISIONS LABOR LAW PROVISIONS. Laws of 1909, Chapter 36, constituting Chapter Thirty-one of the Consolidated Laws. § 3. Hours to constitute a day's work. — Eight hours shall constitute a legal day's work for all classes of em- ployees in this state except those engaged in farm and domestic service unless otherwise provided by law. This section does not prevent an agreement for overwork at an increased compensation except upon work by or for the state or a municipal corporation, or by contractors or subcontractors therewith. * * * Any person or cor- poration who violates any provision of this section shall be guilty of a misdemeanor and upon conviction shall be punished, for a first offense by a fine of five hundred dollars or by imprisonment for not more than thirty days, or by both such fine and imprisonment ; for a second offense by a fine of one thousand dollars, and in addition thereto, the contract on which the violation has occurred shall be forfeited ; and no such person or cor- poration shall be entitled to receive any sum nor shall any officer, agent or employee of the state or of a municipal corporation pay the same or authorize its pay- ment from the funds under his charge or control to any such person or corporation for work done upon any con- tract, on which the contractor has been convicted of a second offense in violation of the provisions of this sec- tion. * * * t Amended by L. 1909, Ch. 293; L. 1913, C!h. 467; L. 1913, Ch. 494; L. 1916, Ch. 153. § 5. Hours of labor in brickyards. — Ten hours, ex- clusive of the necessary time for meals, shall constitute a legal day's work in the making of brick in brickyards owned or operated by corporations. No corporation own- LABOR LAW PROVISIONS 391 ing or operating such brickyard shall require employees to work more than ten hours in any one day, or to com- mence work before seven o'clock in the morning. But overwork and work prior to seven o'clock in the morning for extra compensation may be performed by agreement between employer and employee. § 8-a. One day of rest in seven. — i . Every employer of labor engaged in carrying on any factory or mercan- tile establishment in this state, or in operating an elevator either for freight or passengers in any building or place in this state, shall allow every person, except those speci- fied in subdivision two, and as otherwise herein provided, employed in such factory or mercantile establishment, or in caring for, having the custody or management of or operating any such elevator, at least twenty-four consecu- tive hours of rest in every calendar week. No employer shall operate any factory or mercantile establishment, or any such elevator, on Sunday unless he shall have com- plied with subdivision three. Provided, however, that this section shall not authorize any work on Sunday not now or hereafter authorized by law. 2. This section shall not apply to (a) Janitors; (b) Watchmen; (c) Employees whose duties include not more than three hours work on Sunday in (i) setting sponges in bakeries; (2) caring for live animals; (3) maintaining fires ; (4) necessary repairs to boilers or machinery ; (d) Superintendents or foremen in charge. (e) Employees, if the commissioner of labor in his dis- cretion approves, engaged in the work of any industrial or manufacturing process necessarily continuous, in which no employee is permitted to work more than eight hours in any calendar day. (f) Employees in dairies, creameries, milk conden- saries, milk powder factories, milk sugar factories, milk shipping stations, butter and cheese factories, ice cream 392 LABOK LAW PROVISIONS ' manufacturing plants and milk bottling plants, where not more than seven persons are employed. 3. Before operating on Sunday, every employer shall post in a conspicuous place on the premises a schedule containing a list of his employees who are required or al- lowed to work on Sunday and designating the day of rest for each, and shall file a copy of such schedule with the commissioner of labor. The employer shall promptly file with the said commissioner a copy of every change in such schedule. No employee shall be required or allowed to work on the day of rest so designated for him. 4. Every employer shall keep a time book showing the names and addresses of all employees and the hours worked by each of them in each day, and such time book shall be open to inspection by the commissioner of labor. 5. If there shall be practical difficulties or unnecessary hardship in carrying out the provisions of this act, or rules or regulations adopted by the industrial board there- under, the industrial board shall have power to make a variation from the requirements of this act, or any rule or regulation adopted by the board thereunder, if the spirit of the act shall be observed and substantial justice done. If the board shall permit such variation it shall be in the form of a resolution and such variation shall apply to all similar conditions where the facts are sub- stantially the same as those under which such variation was granted. A majority vote shall be necessary for the adoption of any such resolution. Such resolution shall contain a description of the conditions under which such variation shall be permitted and shall be published in the manner provided for rules and regulations of the board. A record of all such variations shall be kept in the office of the industrial board and shall be properly indexed and shall be open to public inspection during business hours. Added by L. 1913, Oh. 740; subd. 2 (f) added by L. 1914, Oh. 388; subd. 2 (a), (b), (c), (d), (e), amended by L. 1914, Oh. 396; Bubd. Z (e) amended by L. 1915, Ch. 321; subd. 2 (f) amended by L. 1915, Ch. 357; L. 1915, Ch. 648; subd. 1 amended by L. 1919, Ch. 544. LABOR LAW PKOVISIONS 393 § 9. Payment of wages by receivers, — Upon the ap- pointment of a receiver of a' partnership or of a corpora- tion organized under the laws of this state and doing business therein, other than a moneyed corporation, the wages of the employees of such partnership or corpora- tion shall be preferred to every other debt or claim. § 10. Cash payment of wages. — Every manufacturing, mining, quarrying, mercantile, railroad, street railway, canal, steamboat, telegraph and telephone company, every express company, every corporation engaged in harvest- ing and storing ice, and every water company, not munic- ipal, and every person, firm or corporation, engaged in cr upon any public work for the state or municipal cor- poration thereof, either as a contractor or a subcontractor therewith, shall pay to each employee engaged in his, their or its business the wages earned by such employee in cash. No such company, person, firm or corporation shall hereafter pay such employees in scrip, commonly known as store money-orders. No person, firm or cor- poration engaged in carrying on public work under con- tract with the state, or with any municipal corporation of the state, either as a contractor or subcontractor there- with, shall, directly or indirectly, conduct or carry on what is commonly known as a company store, if there shall, at the time, be any store selling supplies within two miles of the place where such contract is being executed. Any person, firm or corporation violating the provisions of this section shall be guilty of a misdemeanor. See 199 N. Y. 108. § II. When wages are to be paid. — Every corporation or joint-stock association, or person carrying on the busi- ness thereof by lease or otherwise, shall pay weekly to each employee the wages earned by him to a day not more than six days prior to the date of such payment. But every person or corporation operating a steam surface railroad shall, on or before the first day of each 394 LABOR LAW PROVISIONS month, pay the employees thereof the wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and on or before the fif- teenth day of each month pay the employees thereof the wages earned by them during the last b^H of the preced- ing calendar month. See 199 N. Y. 108. § 12. Penalty for violation of preceding section. — If a corporation or joint-stock association, its lessee or other person carrying on the business thereof, shall fail to pay the wages of all its employees, as provided in this article, it shall forfeit to the people of the state the sum of fifty dollars for each such failure, to be recovered by the com- missioner of labor in his name of office in a civil action. § 24. Contributions to benefit or insurance fund. — A corporation engaged in the business of operating a mer- cantile establishment shall not by deduction from salary, compensation or wages, by direct payment or otherwise, compel any employee in such mercantile establishment to contribute to a benefit or insurance fund maintained or managed for the employees of such establishment by such corporation, or by any other corporation or person; and every contract or agreement whereby such contribution is exacted shall be absolutely void. A corporation which will violate this section shall be liable to a penalty of one hundred dollars, recoverable by the person aggrieved in any court of competent jurisdiction. A director, officer or agent of a corporation who compels any employee to make a contribution in violation of this section, or sign any contract or agreement to make such contribution, or imposes or requires such a contribution as a condition of entering into or continuing in the employment of a mer- cantile establishment, shall be guilty of a misdemeanor. DEBTOR AND CREDITOK LAW 395 DEBTOR AND CREDITOR LAW Laws of 1900, Chapter 25, constituting Chapter Twenty of the Consolidated Laws. ARTICLE 2 General Assignments for the Benefit of Creditors § i. Jurisdiction of proceedings. — * * * All applica- tions hereunder made in the supreme court shall be made to the court, or a justice thereof within the judicial dis- trict where the assignment is recorded, and all proceed- ings and hearings under this article had in the supreme court upon the return of a citation or order shall be had at a special term of said court held in the county where the debtor resided at the time of the assignment, * * * or in the case of an assignment by a corporation in the county where the principal office of such corporation was at the time of such assignment. Amended by L. 1914, Ch. 360. ^ 3. Requisites of general assignment. — * * * An assignment by a corporation shall be recorded in the county where its principal place of business is situated. When real property is part of the property assigned, and is situated in a county other than the one in which the original assignment is required to be recorded, a certified copy of such assignment shall be filed and recorded in the county where such property is situated. * * * In all cases where an assignment is made by a corpora- tion the right to recover the amount due from stockhold- ers on unpaid capital stock issued to or subscribed for by them shall pass to the assignee whether mentioned in the assignment or not. Amended by L. 1914, Ch. 360. 396 GENEKAL BUSINESS LAW GENERAL BUSINESS LAW Laws of 1909, Chapter 25, constituting Chapter Twenty of the Consolidated Laws. ARTICLE 22 Monopolies Section 340. Contracts for monopoly illegal and void. 341. Penalty. 342. Action to restrain and prevent. 343. Procedure; application for order. 344. Order for examination. 345. No person excused from answering, 346. Powers of referee. § 340. Contracts for monopoly illegal and void. — Every contract, agreement, arrangement or combination whereby A monopoly in the manufacture, production or sale in this state of any article or product used in the conduct of trade, commerce or manufacture or of any article or commodity of common use is or may be created, estab- lished or maintained, or whereby Competition in this state in the supply or price of any such article, product or commodity is or may be re- strained or prevented, or whereby For the purpose of creating, establishing or maintain- ing a monopoly within this state of the manufacture, pro- duction or sal%of any such article, product or commodity, the free pursuit in this state of any lawful business, trade or occupation is or may be restricted or prevented, is hereby declared to be against public policy, illegal and void. The provisions of this article shall not apply to co- operative associations, corporate or otherwise, of farm- GENEBAL BUSINESS LAW 397 ers, gardeners, or dairymen, including live stock farmers and fruit growersy nor to contracts, agreements or ar- rangements made by such associations. Amended by L. 1918, Ch. 490; L. 1921, Ch. 712. See 150 App. Div. 738. § 341. Penalty. — Every person or corporation, or any officer or agent thereof, who shall make or attempt to make or enter into any such contract, agreement, arrange- ment or combination, or who within this state shall do any act pursuant thereto, or in, toward or for the con- summation thereof, wherever the same may have been made, is guilty of a misdemeanor, and on conviction thereof shall, if a natural person, be punished by a fine not exceeding five thousand dollars, or by imprisonment for not longer than one year, or by both such fine and imprisonment; and if a corporation, by a fine of not exceeding twenty thousand dollars. An indictment based on a violation of any of the provisions of this section must be found within two years after its com- mission. Amended hy L. 1910, Ch. 633. § 342. Action to restrain and prevent. — The attorney- general may bring an action in the name and in behalf of the people of the state against any person, trustee, di- rector, manager or other officer or agent of a corporation, or against a corporation, foreign or domestic, to restrain and prevent the doing in this state of any act herein declared to be illegal, or any act in, toward or for the making or consummation of any contract, agreement, arrangement or combination herein prohibited, wherever the same may have been made. § 343. Procedure; application for order. — Whenever the attorney-general has determined to commence an action or proceeding under this article, he may present to any justice of the supreme court, before beginning 398 GENERAL BUSINESS LAW such action or proceeding, an application in writing; for an order directing the persons mentioned in the applica- tion to appear before a justice of the supreme court, or a referee designated in such order, and answer such ques- tions as may be put to them or to any of them, and pro- duce such papers, documents and books concerning any alleged illegal contract, arrangement, agreement or com- bination in violation of this article; and it shall be the duty of the justice of the supreme court, to whom such application for the order is made, to grant such applica- tion. The application for such order made by the attor- ney'general may simply show upon his information and belief that the testimony of such person is material and necessary. The provisions of the code of civil procedure, chapter nine, title three, article one, relating to the ap- plication for -an order for the examination of witnesses before the commencement of an action and the method of proceeding on such examinations, shall not apply ex- cept as herein prescribed. The order shall be granted by the justice of the supreme court to whom the application has been made, with such preliminary injunction or stay as may appear to such justice to be proper and. expedient, and shall specify the time when and place where the wit- nesses are required to appear, and such examination shall be held either in the city of Albany, or in the judicial dis- trict in which the witness resides, or in which the prin- cipal office within this state, of the corporation affected, is located. The justice or referee may adjourn such ex- amination from time to time and witnesses must attend accordingly. The testimony of each witness must be sub- scribed by him, and all must be filed in the office of the clerk of the co«nty in which such order for examination is filed. § 344- Order for examination.— The order for such ex- amination must be signed by the justice making it, and the service of a copy thereof, with an indorsement by the attorney-general, signed by him, to the effect that the GENERAL BUSINESS LAW 399 person named therein is required to appear and be exam- ined at the time and place, and before the justice or referee specified in such indorsement, shall be sufficient notice for the attendance of witnesses. Such indorse- ment may contain a clause requiring such person to pro- duce on such examination all books, papers and docu- ments in his possession, or under his control, relating to the subject of such examination. The order shall be served upon the person named in the indorsement afore- said, by showing him the original order, and delivering to and leaving with him, at the same time, a copy thereof indorsed as above provided, and by paying or tendering to him the fee allowed by law to witnesses subpoenaed to attend trials of civil actions in a court of record in this state. § 345. No person excused from answering. — No per- son shall be excused from attending and testifying, or from producing any books, papers or other documents before any court, magistrate or referee, upon any inves- tigation, proceeding or trial, pursuant to or for a viola- tion of . any of the .provisions of this article, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture, for or on account of any transaction, matter or thing concerning which he may so testify, or produce evidence, documentary or otherwise. And no testimony so given or produced shall be received against him upon any criminal investigation, proceeding or trial. Amended by L. 1910, Ch. 394. § 346. Powers of referee. — A referee appointed as pro- vided in this article possesses all the powers and is sub- ject to all the duties of a referee appointed under section ten hundred and eighteen of the code of civil procedure, 400 GENEBAL BUSINESS LAW SO far as practicable, and may punish for contempt a wit- ness duly served as prescribed in this article for non- attendance or refusal to be sworn or to testify or to produce books, papers and documents according to the direction of the indorsement aforesaid' in the same manner, and to the same extent as a referee appointed to hear, try and determine an issue of fact or of law. GENERAL BUSINESS LAW 401 ARTICLE 23-A* Fraudulent Practices in Respect to Stocks, Bonds and Other Securities Section 353. Investigation by attorney-general. 353. Action by attorney-general. 354. Examination of witnesses and preliminary injunction. 355. Procedure on hearing. 356. Powers of referee. 357. Penalties. 358. Criminal prosecutions. 359. No person excused from answering. SSd-a. Appointment of deputies. § 352. Investigation by attorney-general. — Whenever it shall appear to the attorney-general, either upon com- plaint or otherwise, that in the issuance, sale, promotion, negotiation, advertisement or distribution of any stocks, bonds, notes, evidences of interest or indebtedness or other securities within this state, hereinafter called securi- ties, any person, partnership, corporation, company or association is employing or is about to employ any de- vice, scheme or artifice to defraud or for obtaining money or property by means of any false pretense, representa- tion or promise, or that any person, partnership, corpora- tion, company or association is making or attempting to make in this state fictitious or pretended purchases or sales of securities, or is engaged in or about to engage in any practice or transaction or course of business relating to the purchase or sale of securities which is fraudulent or in violation of the penal law, all of which devices, schemes, artifices, fictitious or pretended purchases or sales of securities, practices, transactions and courses of business are hereinafter referred to as fraudulent prac- , tices, and he believes it to be in the public interest that an investigation be made, he may in his discretion either require or permit such person, partnership, corporation. • Article 23-A was added by L. 1921, Ch. 649. 26 402 GENERAL BUSINESS LAW company or association to file with him a statement in writing under oath or otherwise as to all the facts and circumstances concerning the subject matter which he believes it is to the public interest to investfgate, and for that purpose may prescribe forms upon which such state- ments shall be made. The attorney-general may also re- quire such other data and information as he may deem relevant and may make such special and independent in- vestigations as he may deem necessary in connection with the matter. The attorney-general, his deputy or other officer designated by him is empowered to subpoena witnesses, compel their attendance, examine them under oath before him or a magistrate and require the produc- tion of any books or papers which he deems relevant or material to the inquiry. If a person subpoenaed to attend such inquiry fails to obey the command of a subpoena without reasonable cause, or if a person in attendance upon such inquiry shall without reasonable cause refuse to be sworn or to be examined or to answer a question or to produce a book or paper when ordered so to do by the officer conducting such inquiry, he shall be guilty of a misdemeanor. It shall be the duty of all public officers, their deputies, assistants, subordinates, clerks or em- ployees and all other persons to render and furnish to the attorney-general, his deputy or other designated officer when requested all information and assistance in their possession or within their power. Each deputy or other officer appointed or designated to conduct such inquiry shall make a weekly report in detail to the attorney- general. Any officer participating in such inquiry and any person examined as a witness upon such inquiry who shall disclose tq^any person other than the attorney-gen- eral the name of any witness examined or any other in- formation obtained upon such inquiry except as directed by the attorney-general shall be guilty of a misdemeanor. § 353- Action by attorney-general. — Whenever the at- torney-general shall believe from evidence satisfactory to him that any person, partnership, corporation, company GENERAL BUSINESS LAW 403 or association is engaged or is about to engage in any of the practices or transactions heretofore ref^erred to as fraudulent practices, he may bring an action in the name and on behalf of the people of the state of, New York against such person, partnership, corporation, company or association, and any other person or persons concerned in or in any way participating in or about to participate in such fraudulent practices, to enjoin such person, part- nership, corporation, company or association and such other person or persons from continuing such fraudulent practices or engaging therein or doing any act or acts in furtherance thereof. § 354. Examination of witnesses and preliminary in- junction. — Whenever the attorney-general has deter- mined to commence an action under this article, he may present to any justice of the supreme court, before be- ginning such action, an application in writing for an order directing the person or persons mentioned in the application to appear before the justice of the supreme court or referee designated in such order and answer such questions as may be put to them or to any of them, or to produce such papers, documents and books concerning the alleged fraudulent practices to which the action which he has determined to bring relates, and it shall be the duty of the justice of the supreme court to whom such application for the order is made to grant such applica- tion. The application for such order made by the attor- ney-general may simply show upon his information and belief that the testimony of such person or persons is ma- terial and necessary. The provisions of the code of civil procedure or civil practice act, relating to an application for an order for the examination of witnesses before the commencement of an action and the method of proceed- ing on such examination, shall not apply except as herein prescribed. The order shall be granted by the justice of the supreme court to whom the application has been made with such preliminary injunction or stay as may appear to such justice to be proper and expedient and shall 404 GENERAL BUSINESS LAW specify the time when and place where the witnesses are required to appear and such examination shall be held either in the city of Albany or in the judicial district in which the witness resides or in which the principal office within this state of the person, partnership, corporation, company or association, or one of the persons, partner- ships, corporations, companies or associations against whom the action is to be brought is located. The justice or referee may adjourn such examination from time to time and witnesses must attend accordingly. The testi- mony of each witness must be subscribed by him and all must be filed in the office of the clerk of the county in which such order for examination is filed. § 355- Procedure on hearing. — The order for such ex- amination must be signed by the justice making it and service of a copy thereof with an endorsement by the at- torney-general signed by him or his deputy, to the eflEect that the person named therein is required to appear and be examined at the time and place and before the justice or referee specified in such endorsement, shall be suffi- cient notice for the attendance of witnesses. Such en- dorsement may contain a clause requiring such person to produce at such examination all books, papers and docu- ments in his possession or under his control relating to the subject of such examination. The order shall be served upon the person named in the endorsement afore- said by showing him the original order and delivering to and leaving with him at the same time a copy thereof, endorsed as above provided, and by paying or tendering to him the fee allowed by law to witnesses subpoenaed to attend trials of civil actions in any court of record in this state. § 356. Powers of referee. — The referee appointed as provided in this article possesses all the powers and is subject to all the duties of a referee appointed under the code of civil procedure or the civil practice act, so far as practicable, and may punish for contempt a witness duly GBNEBAL BUSINESS LAW 405 served with the papers as prescribed in this article for non-attendance or refusal to be sworn or to testify or to produce books, papers and documents according to the direction of the endorsement aforesaid, in the same man- ner and to the same extent as a referee to hear, try and determine an issue of fact or of law. § 357' Penalties. — Any person, partnership, corpora- tion, company or association having been served with an order issued pursuant to the provisions of section three hundred and fifty-four, staying or enjoining any practices or transactions, or with any order or with a final judg- ment in an action brought by the attorney-general, as in this article provided, staying or enjoining any practices or transactions, and any person, partnership, corporation, company or association having knowledge of the issuance of any such order or judgment who, while such order or judgment is in effect, shall disobey the same, shall be deemed in contempt of court and shall be guilty of a mis- demeanor and in addition for every violation or attempted violation of such order or such judgment shall be liable to a civil penalty of one thousand dollars, recoverable in an action brought by and in the name of the people of the state of New York. Such penalty shall be cumulative and more than one penalty shall be recoverable in the same action in any court of competent jurisdiction. An appeal from an order or judgment entered under the pro- visions of this article shall not operate as a stay of pro- ceedings to enforce such order or judgment, or suspend the injunction thereby granted unless a justice of the su- preme court, assigned to the appellate division to which such appeal is taken, shall, upon notice to the attorney- general, make an order granting such stay or suspending such injunction upon such terms as he deems proper. § 358. Criminal prosecutions. — The attorney-general may prosecute every person charged with the commission of an indictable offense in violation of the laws of this state, applicable to or in respect of the practices or trans- 406 GENEEAL BUSINESS LAW actions which in this article are referred to as fraudulent practices. In all such proceedings, the attorney-general may appear in person or by his deputy before any court of record or any grand jury and exercise all the powers and perform all the duties in respect of such actions or proceedings which the district attorney would otherwise be authorized or required to exercise or perform; or the attorney-general may in his discretion transmit evidence, proof and information as to such offense to the district attorney of the county or counties in which the alleged violation has occurred, and every district attorney to whom such evidence, proof and information is so trans- mitted shall forthwith proceed to prosecute any corpora- tion, company, association, or officer, manager or agent thereof, or any firm or person charged with such viola- tion. In any such proceeding, wherein the attorney- general has appeared either in person or by deputy, the district attorney shall only exercise such powers and per- form such duties as are required of him by the attorney- general or the deputy attorney-general so appearing. § 359- No person excused from answering. — No person shall be excused from attending and testifying or produc- ing any book, paper or other document before the attor- ney-general or his deputy or other officer designated by him or before any court or magistrate, or referee, upon any trial, investigation or proceeding initiated by the attor- ney-general, district attorney, grand jury or court pur- suant to the provisions of this article, upon the ground or for the reason that the testimony or evidence, docu- mentary or otherwise, required of him may tend to con- vict him of a crime or to subject him to a penalty or for- feiture, but no*person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any trans- action, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal action, suit or proceeding, investigation, inquisition or inquiry. GENBKAL BUSINESS LAW 407 § 3S9-*' Appointment of deputies. — For the purposes of this article, the attorney-general may in his discretion, and without civil service examination, appoint and em- ploy, and at pleasure remove, such deputies, officers and other persons as he deems necessary, and determine their duties and fix their compensation. 408 GENERAL. BUSINESS lAW ARTICLE 25 Interest and Usury Section 370. Bate of interest. 371. Usury forbidden. 373. Recovery of excess. 373. Usurious contracts void. 374. Corporations prohibited from interposing defense of usury. 375. Transfer of cause of action for usury. 376. Return of excess a bar to further penalties. 377. Borrower bringing an action need not offer to repay. 378. How interest calculated. 379. Interest permitted on advances on collateral security. 380. Brokerage on loans. 381. Recovery of excess. 382. Restitution a bar to further penalties. § 370. Rate of interest. — The rate of interest upon the loan or forbearance of any money, goods or things in action, except as otherwise provided by law, shall be six dollars upon one hundred dollars, for one year, and at that rate, for a greater or less sum, or for a longer or shorter time. See 151 App. 0iv. 834; 150 App. Div. 438. § 371. Usxiry forbidden. — No person or corporation shall, directly or indirectly, take or receive in money, goods or things in action, or in any other way, any greater sum or greater value, for the loan or forbearance of any money, goods or things in action, than is above pre- scribed. See 151 App. t)iv. 824; 150 App. Div. 438; 78 Misc. 131. § 372. Recovery of excess. — Every person who, for any such loan or forbearance, shall pay or deliver any greater sum or value than is above allowed to be received, and his personal representatives, may recover in an action against the person who shall have taken or received the GENERAL BUSINESS LAW 409 same, and his personal representatives, the amount of the money so paid or value delivered, above the rate afore- said, if such action be brought within one year after such payment or delivery. If such suit be not brought within the said one year, and prosecuted with effect, then the said sum may be sued for and recovered with costs, at any time within three years after the said one year, by any overseer of the poor of the town where such payment may have been made, or by any county superintendent of the poor of the county, in which the payment may have been made. See 157 App. Div. 808; 151 App. Div. 825; 150 App. Div. 438; 78 Misc. 131. § 373' Usurious contracts void. — All bonds, bills, notes, assurances, conveyances, all other contracts or securities whatsoever, except bottomry and respondentia bonds and contracts, and all deposits of goods or other things whatsoever, whereupon or whereby there shall be reserved or taken, or secured or agreed to be reserved or taken, any greater sum, or greater value, for the loan or forbearance of any money, goods or other things in action, than is above prescribed, shall be void. Whenever it shall satisfactorily appear by the admis- sions of the defendant, or by proof, that any bond, bill, note, assurance, pledge, conveyance, contract, security or any evidence of debt, has been taken or received in violation of the foregoing provisions, the court shall de- clare the same to be void, and enjoin any prosecution thereon, and order the same to be surrendered and can- celed. See 157 App. Div. 808; 155 App. Div. 856; 150 App. Div. 438; 78 Misc. 131. § 374. Corporations prohibited from interposing de- fense of usury. — No corporation shall hereafter interpose the defense of usury in any action. The term corpora- tion, as used in this section, shall be construed to include 410 GENEBAL BUSINESS LAW all associations, and joint-stock companies having any of the powers and privileges of corporations not possessed by individuals or partnerships. See 14S App. Div. T69; 143 App. Div. 135. § 375- Transfer of cause of action for usury. — ^A cause of action to cancel, or otherwise affect, an instrument executed, or an act done, as security for a usurious loan or forbearance, can be transferred, where the instrument or act creates a specific charge upon property, which is also transferred in disaffirmance thereof, and not other- wise; but, in that case, the transferee does not succeed to the right, conferred l)y statute upon the borrower, to procure relief, without paying, or offering to pay, any part of the sum or thing loaned. § 376. Return of excess a bar to further penalties. — Every person who shall repay or return the money, goods or other thing so taken, accepted or received, or the value thereof, shall be acquitted and discharged from any other or further forfeiture, penalty or punishment, which he may have incurred, by taking or receiving the money, goods or other thing so repaid, or returned, as aforesaid. See 207 N. Y. 529; 157 App. Div. 807. § 377. Borrower bringing an action need not offer to repay. — Whenever any borrower of money, goods or things in action, shall begin an action for the recovery of the money, goods or things in action taken in violation of the foregoing provisions of this article, it shall not be necessary for him to pay or offer to pay any interest or principal on ttie sum or thing loaned ; nor shall any court require or compel the payment or deposit of the principal sum or interest, or any portion thereof, as a condition of granting relief to the borrower in any case of usurious loans forbidden by the foregoing provisions of this article. See 157 App. Div. 808; 151 App. Div. 835. GENEKAL BUSINESS LAW 411 § 378. How interest calculated. — Whenever, in any statute, act, deed, written or verbal contract, or in any public or private instrument whatever, any certain rate of interest is or shall be mentioned, and no period of time is stated for which such rate is to be calculated, interest shall be calculated at the rate mentioned, by the year, in the same manner as if the words " per annum " or " by the year " had been added to such rate. § 379- Interest permitted on advances on collateral security. — In any case hereafter in which advances of money, repayable on demand, to an amount not less than five thousand dollars, are made upon warehouse receipts, bills of lading, certificates of stock, certificates of deposit, bills of exchange, bonds or other negotiable instruments pledged as collateral security for such repayment, it shall be lawful to receive or to contract to receive and collect, as compensation for making such advances, any sum to be agreed upon in writing, by the parties to such trans- action. § 380. Brokerage on loans. — No person shall, directly or indirectly, take or receive more than fifty cents for a brokerage, soliciting, driving or procuring the loan or forbearance of one hundred dollars, and in that propor- tion for a greater or less sum, except loans on real estate security; nor more than thirty-eight cents for making or renewing any bond, bill, note or other security given for such loan or forbearance, or for any counter bond, bill, note or other security concerning the same. See 151 App. Div. 825. § 381. Recovery of excess. — Every person who shall pay, deliver or deposit any money, property or thing in action, over and above the rate aforesaid, and his per- sonal representatives may, within one year after such payment, delivery or deposit, sue for and recover the same of the person so taking or receiving such money, 412 GENERAL BUSINESS LAW property or thing in action, or of his personal representa- tives. In case such suit shall not be brought within the time above prescribed, in good faith, or in case it shall be dis- continued, or wilfully delayed, then the overseers of the poor of the city or town where the offense was com- mitted, may, within one year after such neglect, discon- tinuance or delay, sue for and recover the money, property or thing in action, so received, delivered or deposited, from the person receiving the same, or his personal repre- sentatives, for the use of the poor of the county. > See 157 App. Div. 816. § 382. Restitution a bar to further penalties. — Upon the repayment and return of the money, property or other thing so illegally received, with the payment of the costs of such suit, the person making such return shall be acquitted and discharged from any other punishment, for- feiture or penalty, which he may have incurred by reason of having so illegally received such money, property or other thing so returned. See 207 N. Y. 530; 157 App. Div. 816. LIEN LAW 413 LIEN LAW Laws of 1909, Chapter 38, constituting Chapter Thirty-three of the Consolidated Laws. § 230. Chattel mortgages to be filed. — Every mort- gage or conveyance intended to operate as a mortgage of goods and chattels or of any canal boat, steam-tug, scow or other craft, or the appurtenances thereto, navigating the canals of the state, which is not accompanied by an immediate delivery, and followed by an actual and con- tinued change of possession of the things mortgaged, is absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, is filed as directed in this article. This article shall not apply to agreements creating liens upon merchandise or the proceeds thereof for the purpose of securing the repayment of loans or advances made or to be made upon the security of said merchandise and the payment of com- missions or other charges provided for by such agree- ment, where the conditions specified in section forty-five ,of the personal property law are complied with, nor shall this article apply to the mortgage or pledge of or lien upon stocks or bonds mortgaged or pledged to secure payment of a loan, which stocks or bonds, by the terms of a writ- ten instrument creating such mortgage, pledge or lien and setting forth the conditions of such loan, are to be deliv- vered to the lender on the day such loan is made, and every such mortgage, pledge or lien, of such securities, shall be valid as against creditors of such mortgagor or pledgor, provided, however, that if such securities are not delivered to the pledgee or mortgagee on the day such loan is made, the mortgage, lien or pledge therein in- tended to be created shall be absolutely void and of no effect as against the creditors of such mortgagor, pledgor 414 LIEN LAW or lienor unless such instrument, or a true copy thereof, is filed as directed in this article, on the day following the making of such loan, and provided also that every such mortgage, pledge or lien shall be absolutely void as against purchasers, pledgees or mortgagees in good faith of such stocks or bonds provided such stocks or bonds are delivered to such purchaser, pledgee or mortgagee at the time of such purchase, pledge or mortgage. This article shall not apply to the mortgage or pledge of or lien upon stocks, bonds, debentures, notes or other evi- dences of indebtedness, or contracts or choses in action, created by one or more corporations to a trustee to secure the payment of bonds, debentures or notes issued or to be issued by such one or more corporations, where by the terms of a written instrument creating or evidencing such mortgage, pledge or lien some or all of such stocks, bonds, debentures, notes or other evidences of indebted- ness or contracts or choses in action are to be delivered to such trustee at a future date on a release thereof by a trustee under any prior mortgage or instrument of pledge, and every such mortgage, pledge or lien upon such se- curities shall, without filing or refiling, be valid as against creditors of every such corporate mortgagor or pledgor. Amended by L. 1931, Ch. 419. § 230-a. Chattel mortgages on stocks of merchandise. — Every mortgage or conveyance intended to operate as a mortgage upon a stock of merchandise in bulk or any part thereof, or upon merchandise and fixtures pertaining to the conduct of the business of the mortgagor, shall be void as against the creditors of the mortgagor, unless the mortgagor skall at least five days before the execution of such mortgage make a full and detailed inventory, show- ing the quantity and, so far as possible with the exercise of reasonable diligence, the cost price to the mortgagor of each article to be included in the mortgage ; and unless the mortgagee demand and receive from the mortgagor a written list of names and addresses of the creditors of LIEN LAW 415 the mortgagor due or owing to each and certified by the mortgage, under oath to be a full, accurate and complete list of his creditors and of his indebtedness; and unless the mortgagee shall at least five days before the execu- tion of such mortgagor,* notify personally or by regis- tered mail every creditor whose name and address is stated in such list, or of which he has knowledge, of the proposed mortgage and the terms and conditions thereof. Added by L. 1931, Ch. 463. § 231. Corporate mortgages against real and personal property. — Mortgages creating a lien upon real and per- sonal property, executed by a corporation as security for the payment of bonds issued by such corporation, or by any telegraph, telephone or electric light corporation, and recorded as a mortgage of real property in each county where such property is located or through which the line of such telegraph, telephone or electric fight corporation runs, need not be filed or refiled as chattel mortgages. See 72 Misc. 552. § 232. Where filed. — An instrument, or a true copy thereof, if intended to operate as a mortgage of a canal boat, steam tug, scow or other craft, or of the appurte- nances thereto, navigating the canals of this state, must be filed in the office of the superintendent of public works, and' need not be filed elsewhere. Every other chattel mortgage, or an instrument intended to operate as such, or a true copy thereof, must be filed in the town or city where the mortgagor, if a resident of the state, resides at the time of the execution thereof, and if not a resident, in the city or town where the property mort- gaged is at the time of the execution of the mortgage. If there is more than one mortgagor, the mortgage, or a certified copy thereof, must be filed in each city or town wihin the state where each mortgagor resides at * So in original. 416 LIEN LAW the time of the execution thereof. In the city of New York, such instrument must be filed as follows, namely : In the borough of Brooklyn in said city, such instru- ment shall be filed in the office of the register of the county of Kings; in the borough of Queens in said city, in the office of the clerk of Queens county; in the borough of Richmond in said city, in the office of the clerk of the county of Richmond; in the borough of Manhattan in said city, in the office of the register of the county of New York, and in the borough of the Bronx in said city, in the office of the register of the county of Bronx. In every other city or town of the state, in the office of the city or town clerk, unless there is a county clerk's office in such city or town, in which case it must be filed therein. If the chattels mortgaged are in the city of New York at the time of the execution of the mortgage, the mortgage or a true copy thereof must be filed in the county where the mortgagor alleges to reside at the time of the execution of the mortgage, and in the county where the property is situated. All liens and mortgages, including books and records per- taining thereto, now on file in the comptroller's office, shall be transferred to the office of the superintendent of public works, who shall preserve .the same in his department, and who shall be vested with full power and authority to do and perform any and all things relating thereto in like manner and with the same force and eiffect as heretofore done and performed by the comptroller. Amended by L. 1910, Ch. 182; L. 1915, Ch. 27. Note. — See § 9, Lien Law, aa to contents of notice of mechanic's lien; and see i 335, Lien Law, concerning refiling of chattel mort- gages. § 233. Filing and entry. — Such officers shall file every such instrument presented to them for that purpose, and indorse thereon its number and time of its receipt. They shall enter in a book, provided for that purpose, in separ- ate columns, the names of all the parties to each mort- LIEN LAW 417 gage so filed, arranged in alphabetical order, under the head of " mortgagors " and " mortgagees," the number of such mortgage or copy and the date of the filing thereof; and, if the mortgage be upon a craft navigating the canals, and filed in the office of the superintendent of public works, the name of the craft shall also be inserted. In the city of New York such officers shall in addition to the entry aforesaid enter in another book provided for that purpose a statement of the premises in which the chattels mortgaged are contained, arranged in alphabet- ical order, under the name of the street or avenue where the premises are situated and giving the number of such mortgage or copy and the date of the filing thereof. In case no street or avenue is mentioned in the description, in the mortgage or copy, of the premises in which the chattels are contained, then a statement of such premises shall be entered under the title " miscellaneous." Except in the city of New York such officers at the time of filing of such instrument shall, upon request, issue to the per- son filing the same a receipt in writing, which shall con- tain the names of the parties to the mortgage, its date, amount and the date and time of filing thereof. 27 418 NEGOTIABLE INSTRUMENTS LAW NEGOTIABLE INSTRUMENTS LAW Laws of 1909, Chapter 43, constituting Chairter Thirty-eight of the Consolidated Laws. § 41. Effect of indorsement by infant or corporation. — The indorsement or assignment of the instrument by a corporation or by an infant passes the property therein, notwithstanding that from want of capacity the corpora- tion or infant may incur no liability thereon. § 72. Effect of instrument drawn or indorsed to a per- son as cashier. — Where an instrument is drawn or in- dorsed to a person as " cashier " or other fiscal officer of a bank or corporation, it is deemed prima facie to be pay- able to the bank or corporation of which he is such offi- cer ; and may be negotiated by either the indorsement of the bank or corporation, or the indorsement of the officer. § 332. How negotiable bonds are made non-negotiable. — The owner or holder of any corporate or municipal bond or obligation (except such as are designated to cir- culate as money, payable to bearer), heretofore or here- after issued in and payable in this state, but not regis- tered in pursuance of any state law, may make such bond or obligation, or the interest coupon accompanying the same, non-negotiable, by subscribing his name to a state- ment indorsed thereon, that such bond, obligation or coupon is his property; and thereon the principal sum therein mentioned is payable only to such owner or holder, or his legal representatives or assigns, unless such bond, obligation or coupon be transferred by indorsement in blank, or payable to bearer, or to order, with the addi- tion of the assignor's place of residence. PERSONAL PR0PE;ETY LAW 419 PERSONAL PROPERTY LAW Laws of 1909, Chapter 45, constituting Chapter Forty-one of the Consolidated Laws. § 33. Validity of certain agreements made without con- sideration. — An agreement for the purchase, sale, trans- fer or delivery of a certificate or other evidence of debt, issued by the United States or by any state, or a munici- pal or other corporation, or of any share or interest in the stock of any bank corporation or joint-stock associa- tion, incorporated or organized under the laws of the United States or of any state, is not void or voidable, for want of consideration, or because of the non-payment of consideration, or because the vendor, at the time of mak- ing such contract, is not the owner or possessor of the certificate or certificates or other evidence of debt, share or interest. § 42. Regulating loans of money on salaries. — i. Any person or persons, firm, corporation or company, who shall after the passage of this act, make to any employee an advance of money, or loan, on account of salary or wages due or to be earned in the future by such indi- vidual, upon an assignment or note covering such loans or advances, shall not acquire any right to collect or attach the same while in the possession or control of the employer, unless sUch note or assignment is dated on the same day on which such loan is actually made, and unless within a period of three days after such loan and assign- ment or note are actually made the party making such loan or loans and taking such assignment or notes shall have filed with the employer or employers of the indi- vidual or individuals so assigning his present or prospec- tive salary or wages, a duly authenticated copy of such 420 PERSONAL PROPERTY LAW agreement or assignment or notes under which the claim is made. The day of making a loan or advance within the meaning of this act shall be deemed to be the day when the money is delivered to the borrower, and the subsequent execution of an instrument by virtue of a power of attorney shall not be deemed to affect the time of the actual making of such loan or advance. 2. No action shall be maintained in any of the courts of this state, brought by the holder of any such contract, assignment or notes, given by an employee for moneys loaned on account of salary or wages, in which it is sought to charge in any manner the employer or employ- ers, .unless a copy of such agreement, assignment or notes, together with a notice of lien, was duly filed with the employer or employers of the person making such agreement, assignment or notes, by the person or per- sons, corporation or company making said loan within three days after the said loan was actually made and the said agreement, assignment or notes were given as pro- vided in 'the previous section. 3. Every person, firm or corporation engaged in or seeking to engage in the business of loaning money upon security of an assignment of salary or wages either earned or to be earned shall, on or before the first day of July next ensuing the passage of this act, file with the clerk of the county in which said person, firm or corpora- tion has its place of business or transacts business a state- ment under oath containing the name and residence of the individual ; or in case of a firm, the names and resi- dences of the partners; or in the case of a corporation, the name and residences of the officers and directors, managers or^trustees of such corporation ;. and the place or places where said business is transacted by such an individual, firni or corporation. After July the first next ensuing the passage of this act it shall be unlawful to engage in the business of loaning money in the manner set forth in this act without, prior to engaging in such business, filing a statement as provided in this act. PERSONAL PROPERTY LAW 421 4. The several county clerks of this state shall keep an alphabetical index of all persons, firms or corporations filing certificates provided for herein, and for the index- ing and filing of such certificates, they shall receive a fee of twenty-five cents. A copy of such certificate, duly certified to by the county clerk in whose office the same was filed, shall be presumptive evidence in all courts of law in this state of the facts therein contained. 5. After the passage of this act, no person shall directly or indirectly receive or accept for the use and sale of his personal credit or for making any advance or loan of money, either wholly or partly in anticipation of salary or wages due or to be earned, a greater surn than at the rate of eighteen per centum per annum on the amount of such loan or advance, either as a bonus, interest or other- wise, or under the guise of a charge for investigating the status of a person applying for such loan or advance, drawing of papers or other service in connection with such loan or advance, except such charges as are now per- mitted by section three hundred and eighty of chapter twenty-five of the laws of nineteen hundred and nine, known as the " general business law." 6. Every person, firm, corporation, director, agent, offi- cer or member thereof who shall violate any provision of this act, directly or indirectly, or assent to such violation, shall be guilty of a misdemeanor. Amended by L. 1911, Ch. 626. See 80 Misc. 392. § 43. Factors' Act. — i. Every factor or agent, en- trusted with the possession of any bill of lading, custom- house permit, or warehouseman's receipt for the delivery of any merchandise, and every such factor or agent not having the documentary evidence of title, who shall be intrusted with the possession of any merchandise for the purpose of sale, or as a security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract 422 PERSONAL PEOPEKTY LAW made by such agent with any other person, for the sale or disposition of the whole or any part of such merchan- dise and any account receivable or other chose in action created by sale or other disposition of such merchandise, for any money advanced, or negotiable instrument or other obligation in writing given by such other person upon the faith thereof. 2. Every person who shall hereafter accept or take any such merchandise and any account receivable or other chose in action created by sale or other disposition of such merchandise in deposit from any such agent, as a security for any antecedent debt or demand, shall not ac- quire thereby, or enforce any right or interest in or to such merchandise and any account receivable or other chose in action created by sale or other disposition of such merchandise or document, other than was possessed or might have been enforced by such agent at the time of such deposit. 3. Nothing contained in the preceding subdivisions of this section shall be construed to prevent the true owner of any merchandise and any account receivable or other chose in action created by sale or other disposition of such merchandise so deposited, from demanding or re- ceiving the same, upon prepayment of the money ad- vanced, or on restoration of the security given, on the deposit of such merchandise and any account receivable or other chose in action created by sale or other disposi- tion of such merchandise, and upon satisfying such lien as may exist thereon in favor of the agent who may have deposited the same; nor from recovering any balance which may remain in the hands of the person with whom such merchatjii^ise and any account receivable or other chose in action created by sale or other disposition of such merchandise shall have been deposited, as the pro- duce of the sale thereof, after satisfying the amount justly due to such person by reason of such deposit. 4. Nothing contained in this section shall authorize a common carrier, warehouseman, or other person to whom PERSONAL PROPERTY LAW 423 merchandise or other property may be committed for transportation' or storage only, to sell or hypothecate the same. Amended by L. 1915, Ch. 273. § 44. Transfer of goods in bulk. — i. The sale, transfer or assignment in bulk of any part or the whole of a stock of merchandise, or merchandise and of fixtures pertaining to the conducting of the business of the seller, transferrer or assignor, otherwise than in the ordinary course of trade and in the regular prosecution of said business, shall be void as against the creditors of the seller, trans- ferrer or assignor unless the seller, transferrer or assignor and the purchaser, transferee or assignee shall at least five days before the sale make a full and detailed inven- tory, showing the quantity and, so far as possible with the exercise of reasonable diligence, the cost price to the seller, transferrer or assignor of each article to be in- cluded in the sale; and unless the purchaser, transferee or assignee demand and receive from the seller, trans- ferrer or assignor a written list of names and addresses of the creditors of the seller, transferrer or assignor with the amount of the indebtedness due or owing to each and certified by the seller, transferrer or assignor under oath to be a full, accurate and complete list of his creditors and of his indebtedness ; and unless the purchaser, trans- feree or assignee shall at least five days before taking possession of such merchandise, or merchandise and fix- tures, or paying therefor, notify personally or by regis- tered mail every creditor whose name and address are stated in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof. 2. ■ Sellers, transferrers and assignors, purchasers, trans- ferees and assignees under this section shall include cor- porations, associations, co-partnerships and individuals. But nothing contained in this section shall apply to gen- eral assignments for the benefit of creditors or to sales 424 PERSONAL PEOPERTY LAW by executors, administrators, receivers, trustees in bank- ruptcy, assignees under a voluntary assignment for the benefit of creditors or any public officer under judicial process. 3. Any purchaser, transferee or assignee who shall not conform to the provisions of this section shall upon ap- plication of any of the creditors of the seller, transferrer or assignor become a receiver and be held accountable to such creditors for all the goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale, transfer or assignment: Provided, however, that any purchaser, transferee, or assignee, who shall conform to the provisions of this act shall not be held in any way accountable under this section to any creditor of the seller, transferrer or assignor or to the seller, trans- ferrer or assignor for any of the goods, wares, merchan- dise or fixtures that have come into the possession of such purchaser, transferee or assignee by virtue of such sale, transfer or assignment. Amended by L. 1914, C!h. 507. § 45. Notice of liens upon merchandise or the proceeds thereof to secure loans or advances. — Liens upon mer- chandise or the proceeds thereof created by agreement for the purpose of securing the repayment of loans or advances made or to be made upon the security of said merchandise and the payment of commissions or other charges provided for by such agreement, shall not be void or presumed to be fraudulent or void as against creditors or otherwise, by reason of want of delivery to or posses- sion on the part of the lienor, whether such merchandise shall be in exigence at the time of the creation of the lien or shall come into existence subsequently thereto or shall subsequently thereto be acquired by the person creating the lien, provided there shall be placed and maintained in a conspicuous place at the entrance of every building or place in or at which such merchandise, or any part thereof, shall be located, kept or stored, a sign on which PEBSONAL PROPEEtY LAW 425 is printed in legible English, the name of the lienor and a designation of said lienor as lienor, factor or consignee, and provided further that a notice of the lien is filed, stating : 1. The name of the lienor, and the name under which the lienor does business, if an assumed name; the prin- cipal place of business of the lienor within the state; and if the lienor is a partnership or association the names of the partners, and if a corporation the state under whose laws it was organized. 2. The name of the person creating the lien, and the interest of such person in the merchandise, as far as known- to the lienor. 3. The general character of merchandise subject to the lien, or which may become subject thereto, and the period of time during which such loans or advances may be made under the terms of the agreement creating the lien. Such notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowledge. It must be filed with the' ofiEcer designated in section two hundred and thirty-two of the lien law, in every town or city where the merchandise subject to the lien, or any part thereof, is or at any time shall be located, kept or stored, and also in the town or city where the principal office or place of business of the lienor within the state is or at any time shall be located. Such officers shall file every such notice presented to them for that purpose and shall indorse thereon its num- ber arid the time of its receipt. They shall enter in a book provided for that purpose, in separate columns, the names of the parties named in each notice so filed under the head of " owners " and " lienors," the number of such notice and the date of the filing thereof, and the general character of the merchandise as therein stated. The names of the persons creating the liens, as stated in the notice, shall be arranged in alphabetical order under the head of "owners." Such officers at the time of filing such notice shall upon request issue to the person filing the same a receipt in writing, containing the substance ^j 426 PERSONAL PROPERTY LAW of the entries made or to be made as hereinabove pro- vided. Such officers shall be entitled to receive for their services hereunder, fees at the same rate as provided in section two hundred and thirty-four of the lien law. Such notice may be filed at any time after the making of the agreement, and shall be effectual from the time of the filing thereof as against all rights of third parties thereafter arising. Upon the payment or satisfaction of indebtedness secured by any lien specified in this section, the lienor or his legal representative, upon the request of any person interested in the said merchandise, must sign and acknowledge a certificate setting forth such payment or satisfaction. The officer or officers with whom the notice of lien is filed must, on receipt of such certificate or a copy thereof certified as required by law, file the sime in his office and write the word " discharged " in the book where the notice of lien is entered opposite the entry thereof, and the lien is thereby discharged. If the agreement creating such lien shall also give the lienor a right to or lien upon accounts receivable result- ing from or which may result from a sale or sales of the merchandise subject to the lien, or of part of such mer- chandise, such right or lien shall not be void or inef- fectual as against creditors or otherwise, by reason of want of possession of any such account on the part of the lienor or by reason of failure to make or deliver a fur- ther assignment of any such account, provided a bill, in- voice, statement or notice shall be mailed, sent or deliv- ered to the person owing such account receivable, stating or indicating that the account is payable to the lienor, and such mailing, sending or delivery of such bill, invoice, statement or notice shall have the same effect as a formal assignment of such account to the lienor named therein. Added by L. 1911, Ch. 326. ' See 206 N. Y. 33; 149 App. Div. 535; 75 Misc. 505. PERSONAL PEOPEETY LAW 427 ARTICLE 6* Transfers of Shares of Stock Corporations Section 162. How title to certificates and shares may be transferred. 163. Powers of those lacking full legal capacity and of ' fiduciaries not enlarged. 164. Corporation not forbidden to treat registered holder as owner. i 165. Title derived from certificate extinguishes title de- rived from a separate document. 166. Who may deliver a certificate. I 167. Indorsement effectual in spite of fraud, duress, mistake, I revocation, death, incapacity or lack of consideration or authority. 168. Rescission of transfer. I 169. Beseission of transfer of certificate does not invalidate subsequent -transfer by transfers in possession. 170. Delivery of unindorsed certificate imposes obligation to indorse. 171. Ineffectual attempt to transfer amounts to a promise to transfer. 172. Warranties on sale of certificate. 173. No warranty implied from accepting payments of a debt. 174. No attachment or levy upon shares unless certificate surrendered or transfer enjoined. 175. Creditor's remedies to reach certificate. 176. There shall be no lien or restriction unless indicated on certificate. 177. Alteration of certificate does not divest title to shares. 178. Lost or destroyed certificate. 179. Eule for cases not provided for by this act. 180. Interpretation shall give effect to purpose of uniformity. * Article 6 was added by Laws 1913, Ch. 600. As originally enacted, the Personal Property Law contained five articles. By Laws 1911, Ch. 571, a new article 5 was added, and original article 5 was renumbered article 6, which leaves this chapter with two articles numbered 6. The enacting clause of Laws 1913, Ch. ©GO, provides that article 6 should consist of 25 sections, to be numbered 162-186, inclusive, but the chapter contains only 24 sections. Sec. 163 et seq. was cited in 214 N. Y. 523. Sec. 162 was cited in 165 App. Div. 375. 428 PEESONAL PROPERTY IiAW Section 181. Definition of indorsement. 182. Definition of person appearing to be the owner of cer- tificate. 183. Other definitions. 184. Article does not apply to existing certificates. 185. Inconsistent legislation repealed. § 162. How title to certificates and shares may be transferred. — Title to a certificate and to the shares represented thereby can be transferred only, (a) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or (b) By delivery of the certificate and a separate docu- . ment containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the shares represented thereby, signed by the person ap- pearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attor- ney may be either in blank or to a specified person. The provisions of this section shall be applicable al- though the charter or articles of incorporation or code of regulations or by-laws of the corporation issuing the cer- tificate and the certificate itself provide that the shares represented thereby shall be transferable only on the books of the corporation or shall be registered by a regis- trar or transferred by a transfer agent. § 163. Powers of those lacking full legal capacity and of fiduciaries not enlarged. — Nothing in this article shall be construed as enlarging the powers of an infant or Other person iacking full legal capacity, or of a trustee, executor or administrator, or other fiduciary, to make a valid indorsement, assignment or power of attorney. § 164. Corporation not forbidden to treat registered holder as owner. — Nothing in this article shall be con- strued as forbidding a corporation, PERSONAL PEOPEETY LAW 429 (a) To recognize the exclusive right of a person regis- tered on its books as the owner of shares to receive divi- dends, and to vote as such owner, or (b) To hold liable for calls and assessments a person registered on its books as the owner of shares. § 165. Title derived from certificate extinguishes title derived from a separate document. — The title of a trans- feree of a certificate under a power of attorney or assign- ment not written upon the certificate, and the title of any person claiming under such transferee shall cease and de- termine if at any time prior to the surrender of the certifi- cate to the corporation issuing it, another person, for value in good faith, and without notice of the prior trans- fer, shall purchase and obtain delivery of such certificate with the indorsement of the person appearing by the cer- tificate to be the owner thereof, or shall purchase and ob- tain delivery of such certificate and the written assign- ment or power of attorney of such person, though con- tained in a separate document. § 166. Who may deliver a certificate. — The delivery of a certificate to transfer title in accordance with the provisions of section one hundred and sixty-two is effect- ual, except as provided in section one hundred and sixty- eight, though made by one having no right of possession and having no authority from the owner of the certificate or from the person purporting to transfer the title. § 167. Indorsement effectual in spite of fraud, duress, .mistake, revocation, death, incapacity or lack of consid- eration or authority. — The indorsement of a certificate .by the person appearing by the certificate to be the .owner of the shares represented thereby is effectual, ex- cept as provided in section one hundred and sixty-eight, though the indorser or transferor, (a) Was induced by fraud, duress or mistake to make the indorsement or delivery, or 430 PERSONAL PKOPEETY LAW (b) Has revoked the delivery of the certificate, or the authority given by the indorsement or delivery of the cer- tificate, or (c) Has died or become legally incapacitated after the indorsement, whether before or after the delivery of the certificate, or (d) Has received no consideration. § i68. Rescission of transfer. — If the indorsement or delivery of a certificate, r <(a) Was procured by fraud or duress, or ' (b) Was made under such mistake as to make the in- dorsement or delivery inequitable ; or If the delivery of a certificate was made (c) Without authority from the owner, or (d) After the owner's death or legal incapacity, the ■possession of the certificate may be reclaimed and the transfer thereof rescinded, unless : 1. The certificate has been transferred to a purchaser for value in good faith without notice of any facts mak- ing the transfer wrongful, or, 2. The injured person has elected to waive the injury, or has been guilty of laches in endeavoring to enforce his rights. Any court of appropriate jurisdiction may enforce spe- cifically such right to reclaim the possession of the cer- tificate or to rescind the transfer thereof and, pending litigation, may enjoin the further transfer of the certifi- cate or impound it. § 169. Rescission of transfer of certificate does not in- validate subsequent transfer by tra'nsferee in possession. — Although the transfer of a certificate or of shares repre- sented thereby has been rescinded or set aside, neverthe- less, if the transferee has possession of the certificate or of a new certificate representing part or the whole of the same shares of stock, a subsiequent transfer of such cer- tificate by the transferee, mediately or immediately, to a PERSONAL PROPERTY LAW 431 purchaser for value in good faith, without notice of any facts making the transfer wrongful, shall give such pur- chaser an indefeasible right to the certificate and the shares represented thereby. § 170. Delivery of unindorsed certificate imposes obli- gation to indorse. — The delivery of a certificate by the person appearing by the certificate to be the owner thereof without the indorsement requisite for the transfer of the certificate and the shares represented thereby, but w^ith intent to transfer such certificate or shares, shall im* pose an obligation, in the absence of an agreement to the contrary, upon the person so delivering, to complete the transfer by making the necessary indorsement. The transfer shall take effect as of the time when the indorse- ment is actually made. This obligation may be specific- ally enforced. § 171. Ineffectual attempt to transfer amounts to a promise to transfer. — An attempted transfer of title to a certificate or to the shares represented thereby without delivery of the certificate shall have the effect of a promise to transfer and the obligation, if any, imposed by such promise shall be determined by the law governing the formation and performance of contracts. § 172. Warranties on sale of certificate. — A person who for value transfers a certificate, including one who as- signs for value a claim secured by a certificate, unless a contrary intention appears, warrants — (a) That the certificate is genuine, (b) That he has a legal right to transfer it, and (c) That he has no knowledge of any fact which would impair the validity of the certificate. In the case of an assignment of a claim secured by a certificate, the liability of the assignor upon such war- ranty shall not exceed the amount of the claim. 432 PEBSONAL PROPERTY LAW § 173. No warranty implied from accepting payment of a debt. — A mortgagee, pledgee or other holder for se- curity of a certificate who in good faith demands or receives payment of the debt for which such certificate is security, whether from a party to a drafl drawn for such debt, or from any other person, shall not by so doing be deemed to represent or to warrant the genuineness of such certificate, or the value of the shares represented thereby. § 174. No attachment or levy upon shares unless cer- tificate surrendered or transfer enjoined.^— No attachment or levy upon shares of stock for which a certificate is outstanding shall be valid until such certificate be actu- ally seized by the officer making the attachment or levy, or be surrendered to the corporation which issued it, or its transfer by the holder be enjoined, fixcept where a certificate is lost or destroyed, such corporation shall not be compelled to issue a new certificate for the stock until the old certificate is surrendered to it. § 175. Creditor's remedies to reach certificate. — A creditor whose debtor is the owner of a certificate shall be entitled to such aid from courts of appropriate juris- diction, by injunction and otherwise, in attaching such, certificate or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which cannot readily be attached or levied upon by ordi- nary legal process. § 176. There shall be" no lien or restriction vmless in- dicated on certfficate. — There shall be no lien in favor of a corporation upon the shares represented by a certifi- cate issued by such corporation and there shall be no re- striction upon the transfer of shares so represented by virtue of any by-law of such corporation, or otherwise, unless the right of the corporation to such lien . or the, restriction is stated upon the certificate. tEKSONAL PKOPERTY LAW 433 § 177. Alteration of certificate does not divest title to shares. — The alteration of a certificate, whether fraudu- lent or not and by whomsoever made, shall not deprive the owner of his title to the certificate and the shares originally represented thereby, and the transfer of such a certificate shall convey to the transferee a good title to such certificate and to the shares originally represented thereby. § 178. Lost or destroyed certificate. — Where a certifi- cate has been lost or destroyed, a court of competent jurisdiction may order the issue of a new certificate therefor on service of process upon the corporation and on reasonable notice by publication, and in any other way which the court may direct, to all persons interested, and upon satisfactory proof of such loss or destruction and upon the giving of a bond with sufficient surety to be approved by the court to protect the corporation or any person injured by the issue of a new certificate from any liability or expense, whichr it or they may incur by rea- son of the original certificate remaining outstanding. The court may also in its discretion order the payment of the corporation's reasonable costs and counsel fees. The issue of a new certificate under an order of the court as .provided in this section shall not relieve the corporation from liability in damages to a person to whom the orig- inal certificate has been or shall be transferred for value without notice of the proceedings or of the issuance of the new certificate. § 179. Rule for cases not provided for by this act. — In any case not provided for by this act, the rules of law and equity, including the law merchant, and in particular the rules relating to the law of principal and agentj execu- tors, administrators and trustees, and to the effect of fraud, misrepresentation, duress or coercion, mistake, bankruptcy or other invalidating cause, shall govern. 28 ... 434 PEKSONAIi PKOPEBTY LAW § i8o. Interpretation shall give effect to purpose of uniformity. — This act shall be so interpreted and con- strued as to effectuate its general purpose to make uni- form the law of those states which enact it. § i8i. Definition of indorsement. — A certificate is in- dorsed when an assignment or a power of attorney to sell, assign or transfer the certificate or the shares represented thereby is written on the certificate and signed by the person appearing by the certificate to be the owner of the shares represented thereby, or when the signature of such person is written without more upon the back of the cer- tificate. In any of such cases a certificate is indorsed though it has not been delivered. § 182. Definition of person appearing to be the owner of certificate. — The person to whom a certificate was or- iginally issued is the person appearing by the certificate to be the owner thereof, and of the shares represented thereby, until and unless he indorses the certificate to another specified person, and thereupon such other speci- fied person is the person appearing by the certificate, to be the owner thereof until and unless he also indorses the certificate to another specified person. Subsequent spe- cial indorsements may be made with like effect. § 183. Other definitions. — i. In this article, unless the context or subject-matter otherwise requires — " Certificate " means a certificate of stock in a corpora^ tion organized under the laws of this state or of another state whose laws are consistent with this act. " Delivery "• means voluntary transfer of possession from one person to another. " Person " includes a corporation or partnership qr two or more persons having a joint or common interest. To " purchase " includes to take as mortgagee or as pledgee. " Purchaser " includes mortgagee and pledgee. PERSONAL PBOPERTY LAW 435 " Shares " means a share or shares of stock in a cor- poration organized under the laws of this state or of an- other state whose laws are consistent with this act. " State " includes state, territory, district and insular possession of the United States. " Transfer " means transfer of legal title. " Title " means legal title and does not include a merely equitable or beneficial ownership or interest. " Value " is any consideration sufficient to support a simple contract. An antecedent or pre-existing obliga- tion, whether for money or not, constitutes value where a certificate is taken either in satisfaction thereof or as security therefor. 2. A thing is done " in good faith " within the meaning of this act, when it is in fact done honestly, whether it be done negligently or not. § 184. Article does not apply to existing certificates. — The provisions of this article apply only to certificates issued after the taking eflfect of this article. § 185. Inconsistent legislation repealed. — All acts or parts of acts inconsistent with this article are hereby re- pealed. 436 REAL PEOPEKTY LAW REAL PROPERTY LAW Laws of 1909, Chapter 52, constituting Cha'pter Fifty of the Consolidated Laws. § 309. Acknowledgment by corporation and fojim of certificate. — The acknowledgment of a conveyance or other instrument by a corporation, must be made by some officer thereof authorized to execute the same by the board of directors of said corporation. The certificate of acknowledgment must be in substantially the follow- ing form, the blanks being properly filled. State of New York, , I County of On the day of in the year , before me personally came , . to me known, who, being by me duly sworn, did depose and say that he re- sides in ; that he is the (president or other officer) of the (name of corporation), the corporation de- scribed in and which executed the above instrument ; that he knows the seal of said corporation; that the seal af- fixed to said instrument is such corporate seal ; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. (Signature and office of officer taking acknowledg- men,t.) If such corporation have no seal, that fact must be stated in place of the statements required respecting the seal. REAL PROPERTY LAW 437 ARTICLE 15* Action to Compel the Determination of a Claim to Real Property § 512. This article applies to corporations. — An action may be maintained, as prescribed in this article, by or against a corporation, or by or against an unincorporated association, as if it was a natural person, or such an ac- tion may be maintained by or against the receiver or other successor of any such corporation or association. * This article was added by L. 1920, Ch. 930, and includes §§ 500 to 512, inclusive, for which see Beal Property Law in the Consolidated Laws. 438 EXECUTIVE LAW EXECUTIVE LAW Laws of 1909, Chapter 23, constituting Chapter Eighteen of the Consolidated Laws. § los-a. Powers of notaries who are stockholders, di- rectors, officers, or employees of banks or other corpora- tions.— A notary public, who is a stockholder, director, officer or employee of a bank or other corporation may take the acknowledgment of any party to a written in- strument executed to or by such corporation, or admin- ister an oath to any other stockholder, director, officer, employee or agent of such corporation, or protest for non- acceptance or nonpayment, bills of exchange, drafts, checks, notes and other negotiable instruments owned or held for collection by such corporation ; but a notary pub- lic shall not take the acknowledgment of an instrument by or to a bank or other corporation of which he is a stockholder, director, officer or employe, if such notary be a party executing such instrument, either individually or as representative of such corporation, or protest any negotiable instrument owned or held for collection by such corporation, if such notary be individually a party to such instrument. All such acknowledgments or proofs of deeds, mortgages or other instruments, relating to real property heretofore taken before the notaries public aforesaid are confirmed. This act shall not afifect any ac- tion or legal proceeding now pending. Added by L.«1913, Ch. 334; amended by L. 1914, Ch. 410. j For I 26 and § 42, Executive Law, see pages , post. GENEEAL CONSTEUCTIOH LAW 439 GENERAL CONSTRUCTION LAW Laws of 1909, Chaptei 27, colistituting Chaptei Twenty-two of the Consolidated Laws. § 22. Gender. — Words of the masculine gender in- clude the feminine and the neuter, and may refer to a cor- poration, or to a board or other body or assemblage of persons; and, when the sense so indicates, words of the neuter gender may refer to any gender. § 37. Person. — The term person includes a corpora- tion and a joint-stock association. When used to desig- nate a party whose property may be the subject of any ofifense, the term person also includes the state, or any other state, government or country which may lawfully own property in the state. § 43. Seal of court, public officer or corporation. — A seal of a court, public officer or corporation may be im- pressed directly upon the instrument or writing to be sealed, or upon wafer, wax or other adhesive substance affixed thereto, or upon paper, or other similar substance affixed thereto by mucilage or other adhesive substance. § 45. Seal, private as corporate seal. — An instrument or writing duly executed, in the corporate name of a cor- poration, which shall not have adopted a corporate seal, by the proper officers of the corporation under their pri- vate seals, shall be deemed to have been executed under the corporate seal. APPENDIX [441] FEES See § 26, Executive L&w, Chapter 23, Laws of 1909, constituting Chapter. 18 of the Consolidated Laws, amended by Laws 1917, Chapter 69; Laws 1921, Chapter 131. Fees of Secretary of State § 26. Fees. — The secretary of state shall collect the following fees : 1. For entering,a caveat, twelve and a half cents. 2. For searching the records in his office for any one year and for every other year in which such search is made, six cents. 3. For a copy of any paper or record not required to be certified or otherwise authenticated by him, ten cents per folio. 4. For a certified or exemplified copy of any law, record or paper, fifteen cents per folio, and one dollar additional for the certificate under seal of his office, attached thereto ; and this fee shall be the same whether such copy be made by the secretary of state or previously prepared and presented to him for certification, any other law to the contrary notwithstanding. 5. For a certificate under the great seal of the state, two dollars. 6. For recording a certificate, notice or other paper re- quired to be recorded, except as otherwise provided by this section, twenty-five cents per folio. 10. For filing the original certificate of incorporation of a railroad corporation, fifty dollars ; for filing the original certificate of incorporation of any other corporation. thirty dollars ; for filing a certificate of increase of capital stock, pursuant to section six of the stock corporation [443] 444 FEES law, fifteen dollars ; for filing a consent or certificate of a change of the amount of capitar stock pursuant to either section sixty-three or sixty-four of the stock corporation law, fifteen dollars ; for filing a certificate of merger, pur- suant to section fifteen of the stock corporation law, twenty-five dollars ; for filing an agreement for the con- solidation of two or more railroad corporations, fifty dol- lars ; for filing an agreement for the consolidation of two or more corporations other than railroad corporations, twenty-five dollars ; for filing an amended certificate of incorporation, pursuant to either section seven of the gen- eral corporation law or section four of the membership corporations law or section eighteen or twenty-two of the stock corporation law, fifteen dollars ; for filing a consent or certificate to, or transcript of minutes of change of number of directors, pursuant to either section twenty- six of the stock corporation law or section fourteen of the membership corporations law, fifteen dollars ; for filing a certificate of re-organization, pursuant to either section nine or twenty-four of the stock corporation law, twenty- five dollars ; for filing a certificate of change of name, pursuant to section sixty-six of the general corporation law, fifteen dollars ; for filing a certified copy of an order to assume another corporate name, pursuant to section sixty-three of the general corporation law, fifteen dollars ; for filing a consent to, or certificate of change of location of principal office, pursuant to section thirteen of the stock corporation law, fifteen dollars ; for filing a certificate or affidavit of payment of capital stock, five dollars ; for fil- ing a consent to, or certificate of classification of capital stock, pursuant to section sixty-one of the stock corpora- tion law, fiftee§ dollars; for filing a certificate of change of number and par value of shares, pursuant to section sixty-five of the stock corporation law, fifteen dollars ; for filing a certificate of surrender of authority, pursuant to section sixteen-a of the general corporation law, fifteen dollars ; for filing a transcript of minutes relative to change of time of holding of an annual meeting, pursuant FEES 445 to section fifteen of the membership corporations law, fifteen dollars; for filing a certificate of election of trus- tees, fifteen dollars ; for filing a certificate of extension or revival of corporate existence, twenty-five dollars. II. For filing the statement and designation and copy of certificate of incorporation of a foreign corporation de- siring to do business in the state, fifty dollars. 15. For a certificate under subdivision three of section nine of the general corporation law, twenty-five dollars. No fee shall be collected for copies of records furnished to state officers for use in their official capacity. Section 26 was amended by L. 1917, Ch. 69. Subdivision 10 was amended by L. 1921, Ch. 131. Fees of State Comptroller § 42. Fees. — The comptroller shall collect the follow- ing fees : 1. For copies of all papers and records not required to be certified or otherwise authenticated by him, ten cents per folio. 2. For certified or exemplified copies of all records and papers, fifteen cents per folio. 3. For every certificate under the seal of his office, one dollar. ********* 6. For searching the records in his office, on request, fifteen cents for the first book examined, and ten cents for each subsequent book. Fees of County Clerks See § 1516 et seq.. Civil Practice Act* § 1516. Fees of county clerks generally. — A county clerk is entitled, for the services specified in this section, except where another fee is allowed therefor by special * Not applicable to the county clerks of the counties of New York, Kings, Bronx, Queens and Richmond. See § 1518,. following. 44G FEES statutory provision, to the following fees, to be paid in advance : I. For a copy of an order, record or other paper en- tered or filed in his office, eight cents for each folio. * * * 6. For recording any instrument which legally must or may be recorded by him, ten cents for each folio. * * * 9. For filing any paper required by law to be filed in his office, other than as expressly provided for in this sec- tion, six cents. * * * § 1 518. Certain sections not applicable to counties comprising City of New York. — The provisions of sec- tions * * * fifteen hundred and sixteen * * * of this act shall not apply to the county clerks of the counties of New York, Kings, Bronx, Queens and Richmond. § 1519.* Fees of county clerks in counties comprising City of New York. — Except where a greater fee is allowed by another statute for the same service, the county clerks of the counties of New York, Kings, Bronx, Queens and Richmond are entitled for the ser- vices specified in this section to the following fees to be paid in advance : ********* 7. For certifying, except in criminal cas€s, a prepared copy of an order, record or other paper entered or filed in his office, five cepts for each folio, but the minimum total charge shall be twenty-five cents. 8. For preparing and certifying a copy of an order, record or other paper entered or filed in his office, fifteen cents for each folio. * ♦* * * ^ :|, ^ ^' 18. For every certificate issued by him, the fee shall be twenty-five cents. ********* * Applicable only to the county clerks of the counties of New York, Kings, Bronx, Queens and Richmond. FEES 447 See County Law (L. 1920, Ch. 921, § 4). § 174. Fees of county clerks generally. — A county clerk is entitled, for the services specified in this sec- tion, except where another fee is allowed therefor by special statutory provision, to the following fees to be paid in advance: * * * 2. For a copy of an order, record or other paper entered or filed in his office, eight cents for each folio. 3. For recording any instrument which legally must or may be recorded by him, ten cents for each folio. * * * 13. For filing any paper required by law to be filed in his office, other than as expressly provided for in this section, six cents. § 176. Fees of county clerks in counties comprising «ity of New York. — Except where a greater fee is allowed by another statute for the same service, the county clerks of the counties of New York, Kings, Bronx, Queens and Richmond are entitled for the ser- vices specified in this section to the following fees, to be paid in advance: 1. For certifying, except in criminal cases, a prepared copy of an order, record or other paper entered or filed in his office, five cents for each folio, but the minimum total charge shall be twenty-five cents. 2. For preparing and certifying a copy of an order, record or other paper entered or filed in his ofiice, fifteen cents for each folio. * * * 5. For recording any instrument not otherwise pro- vided for herein which must or may be legally recorded by him, ten cents for each folio. * * * 448 TABLE OF FEES TABLE OF FEES Incoiporation. State Treasurer. — Organization tax of one-twentieth of one per cent, (minimum $10) on entire authorized capital stock having a nominal or par value; 5 cents per share on shares without nominal or par value. Section 180, Tax Law. The tax must be paid in cash or by certified check, post-oifiee or express money-order. Incorpora- tion papers should not be sent to the State Treasurer, who will notify the Secretary of State of the payment of the tax before the latter will pass upon papers. Secretary of State. — For filing certificate of incorporation of any corporation except a railroad corporation, $30. Section 26, subd. 10, Executive Law; for certified copy of certificate, 15 cents a folio and $1 for seal ; for exemplified copy of certificate under great seal of the State, $2, in addition to fees for certified copy. County Cleric.* — For filing duplicate original or certified copy of certificate of incorporation, 6 cents ; recording same, 10 cents a folio ; for certifying copies, 8 cents a folio. Amending Certificate of Incorporation. See § 7, General Corporation Law; §§ 18, 22, Stock Corporation Law. State Treasurer. — No tax, except in case of increase of capital stock, q. V. Secretary of State. — Fifteen dollars for filing. County Clerk.* — Fees are the same as on incorporation. Payment of One-Half of Capital Stock. See § 5, Business Corporations Law. Secretary of State. — For filing certificate, $5. County Clerk.* — Fees are the same as on incorporation. Increase or Decrease of Capital Stock. See §§ 6, 63 and 64, Stock Corporation Law. State Treasurer. — Tax of one-twentieth of one per cent, only on amount of increase of capital stock. Minimum tax, $10. * For fees of clerks of the counties of New York, Kings, Bronx, Queens and Richmond, see note to § 1519, Civil Practice Act, page 446, ante. TABLE OF FEES 449 Secretary of State. — For filing certificate of increase or certificate of vote or consent of stockholders, $15; recording fees, 25 cents a folio. County Cleric* — Fees are the same as on incorporation. State Comptroller. — Fees for duplicate certificates on decrease of capital stock, $1 each. Classification of Capital Stock. See § 61, Stock Corporation Law. Secretary of State. — For filing consent or certificate, $15; record- ing fees, 25 cents a folio. County Cleric.* — Fees are the same as on incorporation. Chaiiiging Number and Par Value of Shares. See § 65, Stock Corporation Law. Secretary of State. — For filing certificate, $15; recording fees, 25 cents a folio. County Cleric.* — Fees are the same as on incorporation. Changing Corporate Name. Secretary of State. — For certificate that proposed name is per- missible (see § 60, General Corporation Law), $2; for recording affidavit of publication of order (see § 64, General Corporation Law), 25 cents a folio. No fees for filing the petition for change of name, notice of motion or notice of adjournment thereof to reserve proposed nanie, or certified copy of order of court thereon, and affidavit of publication (§§ 62 and 63, General Corporation Law). For filing a certificate of change of name (§ 66, General Corpora- tion Law), $15. For filing a certified copy of an order to assume another name (§ 63, General Corporation Law), $15. County Clerk.* — For filing order of court on petition, 8 cents; recording same, 10 cents a folio (see § 64, General Corporation Law). For certified copy, as above, to file with Secretary of State, 8 cents a folio. Like fees for filing and recording affidavit of publication (see I 64, General Corporation Law). Changing Location of Principal Office. See § 13, Stock Corporation Law. Secretary of State. — For filing consent or certificate, $15; record- ing fees, 25 cents a folio. * For fees of clerks of the counties of New York, Kings, Bronx, Queens and Richmond, see note to § 1519, Civil Practice Act, page 446, ante. 29 450 TABLE OF FEES County Clerk.* — For filing certificates, 6 cents each; for recording »ame, 10 cents a folio. Changing Number of Directors. See § 26, Stock Corporation Law. Secretary of State. — For filing a consent or certificate ox trans- script of minutes, certificate, $15; recording fees, 25 cents a folio. County Cleric.* — Fees are the same as on incorporation. Consolidation. See § 7, Business Corporations Law. State Treasurer. — A tax of one-twentieth of one per cent, based only on the amount of capital stock in excess of the combined cap- italization of the consolidated corporations. Secretary of State. — For filing agreement for consolidation, $25; for certificate under § 9, subd. 3, General Corporation Law, $25; recording fees, 25 cents a folio. County Clerk.* — The fees are the same as on incorporation. Dissolution by Incorporators. Secretary of State. — No fee for filing certificate required by % 220, General Corporation Law. County Clerk.* — For filing duplicate certificate, 6 cents; for re- cording, 10 cents a folio. Dissolution by Directors and Stockholders. Secretary of State. — No fee for filing consent, etc., to dissolution; for duplicate certificates of such filing and compliance with law, $2 each. See § 221, General Corporation Law. County Clerk.* — For filing foregoing duplicate certificate, 6 cents; recording, 10 cents a folio. Foreign Corporations. See §§15 and 16, General Corporation Law. State Treasurer. — License tax of one-eighth of one per cent, on capital employed in State. Minimum, $10. See § 181, Tax Law. Secretary of Stmte. — On filing papers for authority to do business, $50; for certificate of compliance with law, $1. No fee is charged for filing revocation of agent's authority and designation of new agent, or notice of change of agent 's office, required by § 16, General Corporation Law. * For fees of clerks of the counties of New York, Kings, Bronx, Queens and Richmond, see note to § 1519, Civil Practice Act, page 446, ante. TABLE or FEES 451 For service of process on foreign corporations through ^ecTetary of State, in absence of designation of new agent, $2. (See | 16, General Corporation Law.) Merger. See I 15, Stock Corporation Law. Secretary of State. — For filing certificate, $25; for recording same, 25 cents a folio. Mortgaging Corporate Property. See i 6, Stock Corporation Law. State Treasurer.- — A tax of one-twentieth of one per cent, upon the amount of any increase of the capital stock for conversion of bonds. See § 180, Tax Law. Secretary of State. — Fee for filing certificate authorizing increase of capital stock for conversion into bonds, $10; recording fees, 25 cents a folio. County Cleric.* — For filing duplicate of above certificate, 6 cents; recording, 10 cents. County Cleric* or Begister. — For filing certificate of vote or con- sent to mortgage, 6 cents each; for recording same, 10 cents a folio. Reincorporation. See § 4, Business Corporations Law. State Treasurer. — No tax unless capital is increased. Secretary of State. — No fee for filing certificate; 15 cents a folio for recording. County Clerk.* — Same fees as on incorporation. Reorganization. See i§ 9 and 24, Stock Corporation Law. State Treasurer. — Same tax as on incorporation. Secretary of State. — For filing certificate, $25; for recording, 25 cents a folio. County Clerk.* — Same fees as on incorporation. Reports. No fees, except to County Clerk.* — For filing certificate or report of inspectors of election, C cents; recording fees, 10 cents a folio. * For fees of clerks of the counties of New York, Kings, Bronx, Queens and Richmond, see note to § 1519, Civil Practice Act, page 446, ante. 452 TABLE OF FEES Extension or Kevival of Corporate Existence. See §§ 37, 38, General Corporation Law. Secretary of State. — For filing certificate, $25; recording feea are the same as on incorporation. County Cleric.* — Fees are the same as on incorporation. Surrender of Authority. jSee § 16-a, General Corporation Law. Secretary of State. — For filing certificate, $15; recording fees are the same as on incorporation. County Clerk.* — Fees are the same as on incorporation. * For fees of clerks of the counties of New York, Kings, Bronx, Queens and Richmond, see note to § 1519, Civil Practice Act, page 446, ante. TABLE OF ORGANIZATION EXPENSES, ETC. 453 3 and Franchise Tax. Annual Total Franchise Expenses* Taxt $40 00 $0 75 40 00 3 00 40 00 3 75 40 00 4 50 40 00 6 00 40 00 7 50 40 00 9 00 40 00 10 50 40 00 1125 40 00 12 00 40 00 13 50 40 00 15 00 40 00 18 00 40 00 22 50 40 00 30 00 42 50 37 50 50 00 60 00 55 00 75 00 60 00 90 00 65 00 105 00 67 50 112 50 70 00 120 00 83 00 150 00 105 00 225 00 130 00 300 00 155 00 375 00 180 00 450 00 230 00 600 00 280 00 750 00 380 00 1,050 00 530 00 1,500 00 780 00 2,250 00 1,030 00 3,000 00 5,030 00 15,000 00 • "Total Expenses" include organization tax and fees of Secretary of State, but do not include County Clerk's fees, which are ten cents a folio for recording. t six per cent, dividend basis. See § 182, Tax Law. Corporations which pay the State income tax under article 9-A of the Tax Law are not taxable on any personal property or subject to the annual franchise tax on capital stock. See S 219- j. Tax Law. Table of Organization Ezpi Organization Capital Tax $500 $10 00 2,000 10 00 2,500 10 00 3,000 10 00 4,000 10 00 5,000 10 00 6,000 10 00 7,000 10 00 7,500 10 00 8,000 10 00 9,000 10 00 10,000 10 00 12,000 10 00 15,000 10 00 20,000 10 00 25,000 12 50 40,000 20 00 50,000 25 00 60,000 30 00 70,000 35 00 75,000 37 50 80,000 40 00 100,000 50 00 150,000 75 00 200,000 100 00 250,000 125 00 300,000 150 00 400,000 200 00 500,000 250 00 700,000 350 00 1,000,000 500 00 1,500,000 750 00 2,000,000 1,000 00 10,000,000 5,000 00 FORMS FORM No. 1. Ceitiflcate of Incotporation. See § 2, Business Corporations Law. See § 19, Stock Corporation Law. Ceetificate of Incoepokation op the Compant. We, the undersigned, desiring to form a corporation under the laws of the State of New York, pursuant to the provisions of the Business Corporations Law, all of us being of full age, and [at least two-thirds] of us being citizens of the United States, and [at least one] of us being a resident [residents] of the State of New York, do hereby certify that: 1. The name of the proposed corporation is 2. Tue purpose [or purposes] of said corporation is [are] 3. The amount of the capital stock is dollars, of which dollars is common stock and dollars is preferred stock. [In case stock without nominal or par value is to be issued state: 3. The number of shares which may be issued by the corporation is , of which shares shall be preferred stock and shares shall be stock without nominal or par value.] The par- value of each share of pre- ferred stock is one hundred dollars.* Before any dividends shall be paid upon or set apart for any other stock, the holders of the pre- ferred stock shall be entitled to receive from and after the issuance thereof, and the corporation shall be obligated to pay, but only out of its surplus or net profits, cumulative dividends at the rate of per cent per anuum,t payable semi-annually on the dates to be fixed by the by-laws or by resolution of the board of directors. The preferred stock shall at all times have preference over any other stock in the distribution of the assets of the corporation,!: and upon any dissolution, liquidation, merger, consolidation or other dis- position of the corporation, whether voluntary or involuntary, oi; * By Chapter 694 of the Laws of 1921, amending § 19 of the Stock Corporation Law, it seems that preferred stock without nominal or par value may be issued. t In case the preferred stock has no par value, dividends should be fixed at a definite sum per share. t If the preferred stock has no par value, state a definite amount per share. [455] 456 FOBMS upon any distribution of capital, no sum whatsoever shall be paid to, nor shall any assets whatsoever be distributed among the holders of any other stock, until there shall have been paid to the holders of the preferred stock the par value thereof * and the amount of all unpaid and accrued dividends thereon. The preferred stock is sub- ject to redemption at any time at par * and unpaid and accrued divi- dends thereon upon sixty days' previous notice. 4. Said capital stock shall consist of shares, of the par value of dollars [not less than five nor more than one hundred dollars]. The amount of capital with which said corpo- ration will begin business is [state amount, not less than five hundred dollars]. [In case stock without nominal or par value is to be issued,^ state, instead of the foregoing:] "4. The amount of stated capital with which the corporation will begin business is [not less than five hundred] dollars. The corpo- ration will carry on business with a stated capital which shall not be less than the aggregate amount of the preference to which all issued and outstanding stock having a preference as to principal ia entitled, and in addition thereto the amount of [not less than five] dollars for every share of stock issued and outstanding other than stock having a preference as to principal, and such additional amount as from time to time may by resolution of the board of directors of the corporation be transferred thereto." Or, "4. The amount of stated capital with which the corporation will begin business is [not less than five hundred] dollars. The corporation will carry on busi- ness with a stated capital consisting of the aggregate of the amounts received by it as consideration for the issuance of its shares with no nominal or par value, the aggregate par value of all issued and outstanding shares having a nominal or par value, and such additional amounts as from time to time may by resolution of the board of directors of the corporation; be transferred thereto." 5. The principal business office is to be located in the Borough of , City of New York, County of , in the State of New York. 6. The duration of said corporation is to be years. [Perpetual, if no period is stated. § 11, subd. 1, General Corporation Law.] • 7. The number of directors is [specify any number not less than three]. * If the preferred stock has no par value, state a definite amount per share. t By Chapter 694 of the Laws of 1921, amending § 19 of the Stock Corporation Law, it seems that preferred stock without nominal or par value may be issued. POEMS 457 8. The names and post-office addresses of the directors for the first year are as follows: Names of Directors. Post-office Addresses. At least one of the above named directors [narnvng him] is a citizen of the United States and a resident of the State of New York. 9. The names and post-office addresses of the subscribers to this certificate, and the number of shares of stock which each subscriber agrees to take are as follows: No. of Shares Names of Subscribers. Post-office Addresses. Subscribed 10. [Applies only to stock without nominal or par value.] The corporation may issue and sell its authorized shares without nominal or par value from time to time for [name amount], or for such con- sideration as may from time to time be fixed by the board of di- rectors. See § 19, Stock Corporation Law. 11. [Optional]. Pursuant to section 52 of the Stoik Corporation Law, this corporation shall have power to purchase, acquire, hold and dispose of the stocks, bonds and other evidences of indebtedness of any corporation, domestic or foreign, and issue in exchange there- for its stock, bonds or other obligations. 12. [Optional.] Directors of the corporation are not required to be stockholders. See § 2§, Stock Corporation Law. In Witness Wheeeop, we have made, signed and acknowledged this certificate, this day of , 19 . [At least three subscribers m/ust sign]. State op New Yokk, County of , On the day of > 19 i before me personally came [names of above incorporators], to me known, and known to me to be the individuals described in and who executed the fore- going certificate of incorporation, and they severally acknowledged to me that they executed the same. See notes under § 2, Business Corporations Law. See § 10, subd. 2, General Corporation Law. 458 FORMS Directors need not be stockholders if the certificate of incorpora- tion or the stockholders' by-laws so provide. See § 25, Stock Cor- poration Law. Directors' meetings may be held anywhere unless the certificate or the by-laws specifically require them to be held within the state. See § 2, Business Corporations Law. • Unless otherwise provided in the certificate of incorporation, every stockholder of record of a stock corporation shall be entitled to one vote for every share of stock standing in his name on the books of the corporation. See § 23, General Corporation Law. In case cumulative voting is desired, add the following clause: "At all elections of directors of the corporation, each stockholder shall be entitled to as many votes as shall equal the number of his shares of stock multiplied by the number of directors to be elected, and he may cast all of such votes for a single director or may distribute them among the number so to be voted for, or any two or more of them as he may see fit." See § 24, General Corporation Law. Stock issued for the purchase of property may be authorized by the certificate of incorporation. See § 55, Stock Corporation Law. In case it is desired to form a full liability corporation, the words "full liability" should be inserted in the first paragraph of the foregoing certificate before the word corporation. See § 6, Business Corporations Law. The certificate of incorporation may provide for the issuance of partly paid stock. See § 60, Stock Corporation Law. If the certificate of incorporation is to be recorded elsewhere than in the county in which it is executed, a county clerk's certificate of the authority of the officer taking the acknowledgment should be attached. For provisions relative to filing and amount of fees, see Table of Fees, ante. GENERAL PURPOSE CLAUSES. The purpose for which it is formed is to transact a general business ; to manufacture, produce, buy, sell, import, export, lease, exchange, hire, let, invest in, mortgage, trade and deal in and otherwise acquire and dispose of goods, wares and mer- chandise and property of every kind, class, nature and description, except bills of exchange, and to do manufacturing, merchandising and mining of any and every kind. To purchase, buy, sell, own, hold, maintain, work, develop, convey, mortgage, lease, let, hire and otherwise acquire, dispose of or deal FOBMS 459 in real estate without limit as to amount or value within or without the State of New York, and any part of the world, and any interest or right or rights therein, and to engage in the construction or repairing of buildings of all kinds. The corporation shall have the power to carry on any of the above business or do any of the acts or things hereinbefore enumerated and have one or more offices and unlimitedly and without restriction to hold, purchase, lease, mortgage and convey real and personal property in the State of New York, or in any other State, District, Territory, Colony or dependency, possessions or territorial acquisi- tions of the United States or in any foreign country, subject only to the requirements and restrictions of the laws of such other State, District, Territory, Colony or dependency, possession or territorial acquisition of the United States or of such foreign country. In furtherance, and not in limitation of the general powers con- ferred by the laws of the State of New York, It is hereby expressly provided that the company shall have also the following powers, that is to say: (a) To the same extent as natural persons might or could do, to purchase or otherwise to hold, own, maintain, work, manufacture, mine, develop, to sell, convey, or otherwise dispose of, without limit as to amount within or without the State of New York, and in any part of the world, real estate and personal property and any interest or right therein. (b) To acquire the good will, and to take over the whole or any part of the assets and liabilities of any person, firm or corporation engaged in a similar line of business, and to purchase the same for cash, stock of this corporation, bonds or otherwise. (c) To apply for, obtain, register, purchase, lease or otherwise acquire and to hold, own, use, operate, introduce and sell, assign or otherwise dispose of any and all copyrights, trade marks, and all in- ventions, improvements and processes used in connection with or se- cured under letters patent of the United States or elsewhere or otherwise, and to use, exercise, develop, grant licenses in respect of or otherwise turn to account any such copyrights, trade marks, pat- ents, concessions, processes and the like, or any such property, right or information so acquired; and with a view to the working and developing of the same to carry on any business whether manu- facturing, merchandising, mining or otherwise. (d) To do everything necessary, advisable or proper in order to accomplish any of the purposes and objects herein enumerated, or which shall at amy time appear conducive or expedient for the pro- tection or benefit of the corporation, either as holders of, or inter- ested in any property, and in general to carry on any business, 460 FOBMS whether merchandising, manufacturing, contracting, constructing, mining or otherwise. (e) To hold, purchase or otherwise acquire, to sell, assign, trans- fer, mortgage, pledge or otherwise dispose of shares of the capital stock, bonds or other evidences of indebtedness created by any other public or private corporation or corporations, and to give any guar- anty or security for the payment of dividends or interest thereon or otherwise in relation thereto, and while the holder of such stock to exercise all the rights and privileges of ownership, including the right to vote thereon to the same extent as natural persons might or could do. (f ) To do any or all things herein set forth to the same extent as natural persons might or could do, in any part of the world, as prin- cipals, agents, contractors, trustees, or otherwise, and in general to engage in any and all lawful business whatever, necessary or con- venient in connection with the business of said company, excepting that of an insurance, assurance, indemnity, guarantee, guaranty, title, savings, investment, loan, benefit, safe deposit or trust com- pany, a banking company, a savings bank, bank or banking or other corporation intended to derive profit from the loan and use of money; a railroad company within the State, or any turnpike com- pany; or any other company which shall need to possess the right of taking and condemning lands. (g) The corporation shall also have power to conduct its business in all its branches, and to have one or more offices out of the State of , and at such places as may be from time to time designated by it. (h) So far as allowed by law the Directors may hold their meet- ings and have an office and keep the books of the corporation (except the stock and transfer books) outside of the State of New York.* FORM No. 2. Subscription Agreement. Capital Stock. • Number of Shakes, t Par Value, $ We, the undersigned, hereby subscribe for and agree to take at the par value t of $ each, the number of shares of the capital stock of the Company to be incorporated under the laws of the State of New York, set opposite our respective names. The amount * See § 2, Business Corporation Law. t If without par value, so state. FORMS 461 of our subscriptions is payable in cash, as follows: [State times of payment.'] Dated, , 19 . Names Addresses Number of Shares Amount FORM No. 3. Minutes of Meeting of Incorporators. First meeting of the incorporators and subscribers to the capital stock of Company, held at No. .. Street, Borough of , City, of New York, County of , State of New Yorkj on the day of 19 , at o'clock in the noon. There were personally present the following subscribers to the capital stock {or stated capital] of the corporation: Name. Post Office Addresses. No. of Shares. , one of the subscribers to the certificate of incorpo- ration and to the capital stock [or the stated capital] of the corpo- ration, called the meeting to order and stated the object thereof. On motion duly made, seconded and carried, was nominated chairman of the meeting, and a vote having been taken was duly elected to occupy such position. On motion duly made, seconded and carried, was nominated secretary of the meeting, and a vote having been taken was duly elected to occupy such position. The secretary then read the following waiver of notice of the time and place of holding the meeting, signed by all the incorporators and subcribers to the capital stock [or stated capital] of the com- pany: [Here insert Form No. 13.] The secretary then reported to the meeting that the certificate of incorporation of the Company was filed in the office of the Secre- tary of State on the day of 19 , and that the organization tax of dollars had been paid to the State ,462 FORMS Treasurer, and that a receipt therefor had been given by the State Treasurer on or aoout the day of 19 ; that a duplicate original of said certificate of incorporation, together with a duplicate receipt of the State Treasurer were filed and recorded in the office of the Clerk of the County of ,. , the county in which the principal place of business of the Company is to be located, on the day of , 19) , and that all fees for filing and recording said certificates were duly paid before filing. On motion duly made, seconded and carried, it was ^ EESOLVED, that said report be adopted as correct and that the secretary cause a copy of the said certificate of incorporation to be spread at length upon the minutes of this meeting. On motion duly made, seconded and carried, Mr. and Mr. were appointed a committee to prepare the by-laws for the regulation of the affairs of the Company, the management of its property, the transfer of its stock, the calling of meetings of the stockholders and directors, and fixing what attendance and what amount of stock must be represented thereat in order to constitute a quorum, and all such other matters as may be properly contained in such by-laws, and to report the same to the meeting at their earliest convenience. Said committee thereupon presented proposed by-laws which were read clause by clause and separately and carefully considered. On motion duly made, seconded and carried, said by-laws were adopted as and for the by-laws of the Company. On motion duly made, seconded and carried, the secretary was in- structed to cause the by-laws to be inserted in the minute book. The secretary then presented and read the following letter which had been received from Mr. : New York, , 19 . To the Company, Gentlemen : I hereby offer to sell and convey to your Company on the day of , 19 , all of the assets then owned by me in the business conducted by me and known as at No. New York City, including all merchandise, fixtures, book accounts, money on hand and«in bank and good will, for the sum of doUars which I agree to accept in stock of your Company as fol- lows: dollars in preferred stock and dollars in common stock [or ^tock without nominal or par value]. Very truly yours Said proposition was thereupon discussed, and the incorporators were of the opinion that the acceptance thereof by this Company FOBMS 463 was for its best interests and that the fair value of assets so offered to be conveyed to the Company by said was dollars. Upon motion duly made, seconded and carried, it was RESOLVED, that subject to the approval of the board of di- rectors of this Company, this Company accept the said offer of in exchange for dollars in stock of this Company as mentioned in said offer, and that upon the transfer, as- signment and delivery to this Company of said assets, this Com- pany issue and deliver to said , his nominees or assigns, certificates of stock for shares of the preferred stock and shares of the common stock [or shares without nominal or par value'^ of this corporation, and that the officers of this corpo- ration take such further steps as may be necessary or advisable for the purpose of carrying out the terms of said offer and the inten- tion of the foregoing resolution. Upon motion duly made, seconded and carried, it was RESOLVED, that the principal office of the corporation be located at No. Street, Borough of , County of State of New York, and that said principal office may be changed from time to time as the Jjoard of directors may determine. Upon motion duly made, seconded and carried, the foregoing minutes were read and approved as and for the minutes of );hia meeting. Upon motion duly made, seconded and carried, the meeting ad- journed. I, , Chairman of the foregoing meeting, and I, , secretary thereof, do hereby certify that the fore- going is a true, full and accurate statement and record of the things done thereat. Dated, City of New York, , 19 . Chairman. Secretary. FORM No. i. Minutes of First Meeting of Directors. The first meeting of the Board of Directors of Com- pany was held at No. Street, Borough of , City of New York, County of , and State of New York, on the day of > ^9 , at o'clock in the noon. 464 roRMS Present: , and , being all of the directors named in the certificate of incorporation to serve for the first year. On motion duly made, seconded and carried, Mr. was nominated and elected temporary chairman. ^ One motion duly made, seconded and carried, Mr. was nominated and elected temporary secretary. The secretary then presented and read to the meeting a waiver of notice of the time and place of the meeting subscribed by all of the directors mentioned in the certificates of incorporation. [Eere insert Form No. 13.] The secretary then presented to the meeting the following letter which had been received from Mr. : New York, , 19 . To the Company, Gentlemen : I hereby offer to sell and convey to your Company on the , day of , 19 , all of the assets then owned by me in the business conducted by me and known as at No. , New York City, including all merchandise, fixtures, book accounts, money on hand and in bank and good will, for the sum of dollars which I agree to accept in stock of your Com- pany as follows: dollars in preferred stock and dollars in common stock [or stock without nominal or par value'\. Very truly yours. The secretary then stated that said proposition had been presented to and discussed by the stockholders of this Company at their first meeting held , 19 , and that the following resolutions had been passed thereat: RESOLVED, that subject to the approval of the board of direc- tors of this Company, this Company accept the said offer of in exchange for dollars in stock of this Company as mentioned in said offer, and that upon the transfer, assignment and delivery to this Company of said assets, this Com- pany issue and deliver to said , his nominees or assigns, certificates of stock for shares of the preferred stock and shares of the common stock [or shares without nomi- nal or par value] of this corporation, and that the officers of this corporation take such further steps as may be necessary or advisable for the purpose of carrying out the terms of said offer and the in- tention of the foregoing resolution. Said offer and proposition was thereupon carefully discussed and Upon motion duly made, seconded and carried, it was FORMS 465 EESOLVED, that this Company accept the offer of , in exchange for dollars in stock of this Company as fol- lows: dollars in preferred stock and dollars in common stock [or shares without nominal or par value]. . EESOLVED, FURTHER, that upon the transfer, assignment and delivery to this corporation of said assets, this Company execute, issue and deliver to said , his nominees or assigns, certifi- cates of stock for shares of the preferred stock and shares of the common stock [or shares without nominal or par value"] of this Company, and that the officers of this Com- pany take such further steps as may be necessary or advisable for the purpose of carrying out the terms of said offer and the intention of these resolutions. The secretary then presented and read to the meeting the minutes of the first meeting of the incorporators and subscribers to the cap- ital stock held this day at , No. , Borough of , City of New York. . , . On motion duly made, seconded and carried, the proceedings had at said meeting were in all respects ratified, approved and confirmed. The secretary then presented and read to the meeting the by-laws adopted at the said meeting of the incorporators. The by-laws were taken up clause by clause and discussed, and on motion duly made, seconded and carried, said by-laws were in all respects ratified, approved and confirmed as and for the by-laws of the Company. On motion duly made, seconded and carried, it was RESOLVED, that the meeting proceed to the election of officers to serve until the next annual meeting. The chairman then stated that in accordance with the by-laws a president, vice-president, secretary and treasurer of the Company were to be elected, and that nominations were in order. Mr. was nominated for president by Mr. , which nomination was seconded. On motion duly made, seconded and carried, nominations were de- clared closed, and there being no other nominations a ballot was taken resulting in the election of Mr. as president of the Company. The chairman then stated that nominations for vice-president were next in order. • Mr. was nominated for vice-president by Mr. , which nomination was seconded. On motion duly made, seconded and carried, nominations were de- clared closed, and there being no other nominations a ballot was taken resulting in the election of Mr. as vice-president. 30 ^66 FORMS The chairman then stated that uominations for secretary were in order. Mr. was nominated for secretary by Mr. , which nomination was seconded. On motion duly made, seconded and carried, nominations were declared closed, and there being no other nominations a ballot was taken resulting in the election of Mr. as secretary. The chairman then stated that nominations for treasurer were next in order. Mr. was nominated for treasurer by Mr. , which nomination was seconded. On motion duly made, seconded and carried, nominations were de- clared closed, and there being no other nominations a ballot was taken resulting in the election of Mr. as treasurer of the Company. On motion duly made, seconded and carried, it was EESOLVED, that the day of in each year at o'clock in the noon be fixed as the time- for regular meetings of the board of directors of this Company. On motion duly made, seconded and carried, it was EEESOLVED, that the certificates of capital stock of the Com- pany and the endorsement thereon be in the following form [or forms] : [Here insert forms of stock certificates.] On motion duly made, seconded and carried, it was RESOLVED, that the fiscal year of the Company be the calendar year [or shall iegin on July 1st]. The secretary then read a resolution of the incorporators and sub- scribers adopted at their meeting held on the day of , 19 , whereby the office of the Company was located at No. , Borough of , County of , City of New York, State of New York. On motion duly made, seconded and carried, Mr. and Mr. was duly appointed inspectors of election to act as such at all meetings of the stockholders to be held during the en- suing year. On motion duly made, seconded and carried it was EESOLVED, that the president be authorized, empowered and directed to open a8 account or accounts in the name of this Com- pany with such bank or banks, or trust company or trust companies as the board of directors may designate 'from time to time, and that checks on said account or accounts may be drawn and signed by the and Dated, New York City, , 19 . Chairman. Secretary. VoEMS 467 FORM No. 5. Certificate of Payment of One-half of Capital Stock.'*' See § 5, Business Corporations Law. State or New York, County of , **•■ We, the undersigned, a majority of the directors of the Company, do hereby certify: That the capital stock* of said company is dollars, and that one-half thereof has been paid in, of which dollars was issued for property purchased.! That said payment of one-half of said capital stock * was made within one year from the incorporation of said company, and within thirty days preceding the date of the execution and acknowledgment of this certificate. In witness whereof, we have executed this certificate this day of , 19 . Majority of Directors. State op New York, County of , " On this day of > 19 > before me personally came [na/mes of directors signing certificate], to me known, and known to me to be the individuals described in and who executed the foregoing certificate, and they severally acknowledged to me that they executed the same. State of New York, County of , " [Names of president {or vice-president) and secretary {or treas- urer)], being respectively duly sworn, depose and say, that he, the said , is the of the Company, and that he, the said , is the thereof, and that the above certificate is true. Sworn to before me, this day of , 19 . •In the case of stock without nominal or par value, substitute "stated capital." Jor "capital stock." t See § 55, Stock Corporation Law. 468 FORMS Note. — § 53 of the Stock Corporation Law provides that " at the time of subscribing every subscriber whose subscription is payable in money shall pay to the directors ten per centum upon the amount subscribed by him in cash, and no such subscription shall be re- ceived or taken without such payment." This provision relates only to subscriptions made after organization. See 22 App. Div. 1, 4; 9 Misc. 425. See also 25 N. Y. 210; 1 Keyes, 118; 25 Hun, 91; 37 Hun, 422. FORM No. 6. Amended Certificate to Correct Errors, Omissions, Etc. See § 7, General Corporation Law. Amended Certificate op the Company. We, the undersigned incorporators [or directors'^ of the Company, do hereby make and iile this amended certificate, pursuant to § 7 of the General Corporation Law, for the purpose of [1. Correcting an informality in the original, amended or supple- mented certificate of incorporation as follows:'\ [2. Omitting from such certificate the following matter not au- thorized by law:] [3. Correcting a defect in the acknowledgment thereof as fol- lows:} In witness WHEREor, we have executed this amended certificate in duplicate. Dated this day of , 19 . Note. — ^Add acknowledgment as in Form No. 1. poBMS 469 FORM No. 7. By-Laws. See § 11, 30 and 34, General Corporation Law. BY-LAWS OF THE COMPANY. Article I. — Directors. § 1. The number of directors of this company shall be all of whom shall be elected by ballot by the stockholders who shall attend in person or by proxy, at the annual meeting of the company, and each director shall be elected to serve for the term of one year. [One-fourth only of the directors need be elected annually. At least one of the directors must be a citizen of the United States and a resident of the state. § 34, General Corporation Law. Di- rectors need not be stockholders, if the certificate of incorporation or a stockholders' by-law so provide. § 25, Stock Corporation Law.] § 2. Vacancies in the board of directors occurring during the year shall be filled by a majority vote of the remaining members of the board at any regular meeting of the board or at any special meet- ing called for the purpose of filling such vacancy. § 3. The board of directors shall meet on the first Monday of every month, and whenever called together by the president. On the written request of any director the secretary shall call a special meeting of the board. A majority of the board shall constitute a quorum for the transaction of business. Article II. — Officers. § 1. The board of directors, immediately after each annual meet- ing, shall elect by ballot the officers of the company for the ensuing year, and a majority vote of the whole number of directors shall be necessary for the election of each of said officers. § 2. The officers of the company shall be a president, vice-president treasurer, secretary and assistant secretary. § 3. The president shall preside at all meetings of the board of directors, and shall act as temporary chairman at, and call to order, all meetings of the stockholders; and he shall, under the control of the directors of the company, have the general management of its affairs and shall perform all the duties incidental to his office. § 4. The vice-president shall, in the absence or incapacity of the president, perform the duties of that office. i 5. The treasurer shall have the custody of, and be responsible for, all moneys, papers, books and accounts of the corporation, save 470 FORMS only such papers, books and records as are hereinafter directed to be kept by the secretary; subject always to the control of the board of directors. He shall deposit all funds of the company in such bank or banks as the directors may designate ; he shall keep his bank account in the name of the company, and shall exhibit his books and accounts to any director upon application at the of&ce of the company at any time during ordinary business hours; he shall record all transfers of stock and cancel and preserve all certificates of stock transferred; and at each annual meeting of stockholders shall present a fuU statement of the affairs of the company. He shall also keep a book containing the names, alphabetically arranged, of all persons who are stockholders of this company, showing their places of residence, the number of shares of stock held by them respectively, and the time when they become the owners of such shares, and the amount of money paid thereon; and shall generally perform all the duties appertaining to his office. [Provisions requir- ing a bond should be here inserted if desired.] § 6. The secretary shall keep a record, in proper books provided for that purpose, of all the meetings and proceedings of the board of directors, and also the minutes of the stockholders' meetings; he shall record all the votes of the corporation, and shall keep such other records, and shall attend to such correspondence of the com- pany as the board of directors shall direct; he shall notify the di- ) ectors and stockholders of their respective meetings ; he shall attend to the giving and serving of all notices of the company, and shall in general do and perform all the duties appertaining to his office. § 7. The assistant secretary shall perform such duties of the secre- tary as the latter shall from time to time assign to him. § 8. Vacancies among the officers of the company during the year may be filled by a majority vote of the directors at any regular meeting of the board, or at any special meeting called for the pur- pose of filling such vacancy. Aeticle III. — Meetings. § 1. The annual meeting of the company shall be held at the office of the company on the first Thursday of January of each year, at twelve o'clock, noon, and the secretary shall send through the post- office, at least teu^ays before such meeting, a notice thereof, ad- dressed to each stockholder at his last-known post-office address, in addition to notice required by law to be published. § 2. Special meetings of stockholders, other than those regulated by statute, may be called by the board of directors upon ten days' notice to each stockholder of record, such notice to contain a state- ment of the business to be transacted at such meeting, and to be FORMS 471 served personally or sent through the post-office, addressed to each stockholder at his last known post-office address. The directors shall also call upon like notice a special meeting of stockholders when- ever stockholders representing one-third of the capital stock of the company require it. No business other than that specified in the call for the meeting shall be transacted at a special meeting of stockholders. § 3. At all meetings of stockholders, except where it is otherwise provided by law, it shall be necessary that stockholders representing in person or by proxy a majority of the capital stock shall be present to constitute a quorum. Article IV. — Inspectors op Election. § 1. Two inspectors of election shall be chosen at each annual meeting of the company to serve for one year, and if any inspector shall refuse to serve or shall not be present at the time of election, the meeting may appoint an inspector in his place. Article V. — Seal. § 1. The seal of the corporation shall be circular in form, with the words [here insert corporate name'] on the circumference, and the figures [here insert year of incorporation] in the center. It shall be kept in the charge and custody of the treasurer, and must be affixed to aU instruments requiring a seal, together with the signa- tures of the president and treasurer, or, in their absence or in- capacity to act, of the vice-president and secretary. Articles VI. — ^Dividends. § 1. Dividends, payable from the net profits in hand, shall be declared and paid, at such times and in such amounts as the board of directors may from time to time designate. Article VII. — Amendments. § 1. These by-laws may be amended at any annual or special meeting of stockholders called in conformity with Article III upon a majority vote of the stockholders present at such meeting. The foregoing form is suggestive merely. Additional provisions and alterations to correspond with particular needs should be made. 472 FORMS FORM No. 8. Proof to be Filed by Foreign Stock Corporation* to Obtain License to do Business. See §§15 and 16, General Corporation Law. Statement. • The Company, a stock corporation organized under the laws of [State, territory or oountry^, does hereby certify, pur- suant to the provisions of the General Corporation Law of the State of New York, as follows: 1. That the business which the said corporation is engaged in carrying on [or purposes to carry on] in the State of New York is as follows: [Describe the business or objects of the corporation.'] 2. That the principal place of business of the said corporation in the State of New York is [to he} in the Borough of , in the City of , County of 3. That [name and occupation] residing at , is hereby designated as the person upon whom all process against the said corporation may be served within the State of New York, and that the said has an office or place of business at No. street. Borough of , in the City of , Sitate of New York, the place where said corporation is to have its principal place of business in the State of New York. 4. That annexed hereto is a sworn copy of the charter of the said Company and the consent of the person above designated. In witness whereof, the said Company has caused this certificate to be executed by its president [or vice-presidenf], and its corporate seal to be hereto affixed on this day of , 19 . [Corporate Seal.] Company, By [President or Vice-President.] [Add acknowledgement as in Form No. 41.] Verification op Copy of Charter to be Attached. State op New York, County of , , being duly sworn, says that he is the of the Company, and that the copy of the charter or * Other than a moneyed corporation. See § 15, General Corpo- ration Law. FORMS 473 certificate of incorporation of the said Company hereto annexed is a true copy thereof. Sworn to before me this day of , 19 . Consent of Person Designated. State op New Yoek, County of , **■' I, , residing at , and having an of&ce at No. street, Borough of , in the City of , State of , consent to the designation set forth in the foregoing certificate. Dated, , 19 . State op New York, County of , On the day of > 19 > before me personally came [name of person designated], to me known, and known to me to be the individual described in and who executed the foregoing consent, and he acknowledged to me that he executed the same. Revocation and Designation of New Agent. The Company, a foreign corporation, hereby revokes the designation of as the person upon whom process against it may be served in the State of New York, and in his place designates as the person upon whom all process against said Company may be served within said State. The office or place of business of said [name of new designee'] is at No. street. Borough of , in the City of , State of New York, which is the place where the princi- pal place of business of said Company in the State of New York is located. The consent of said to the above designation is hereto attached. In Witness wheeeop, the said Company has caused this certificate to be executed by its , and has hereunto affixed its corporate seal this day of , 19 . Company, [CORPORATE SEAL.] By [President or Vice-President.] [Add acknowledgment as in Form No. 41, and consent and acknowledgment of new designee, as aiove.] 474 FORMS FORM No. 9. Voting Trust Agreement. See § 25, General Corporation Law. This agreement, made and entered into this, day of 19 , by and between the holders of the certificates of the capital stock of the Company (hereinafter referred to as the stockholders), parties of the first part, and A. B., C. D., and E. F. (hereinafter referred to as trustees), parties of the second part, WITNESSETH: That each of the holders of the certificates of the capital stock of the Company, who shall deposit the same with the Trust Company of New York (hereinafter called the trust company), after being properly transferred on the books of said Company to said trustees, and duly assigned by them in blank, agrees for himself and not for the others, but to and with the others and said parties of the second part, as fpUows: 1. The said shares of capital stock shall remain on deposit with the depositary above named for the full period of five years * from the day of j 19 > 's'iz- : until the day of , 19 , except as hereinafter provided. 2. That during said period of five years said trustees shall con- trol the said stock for the purpose of voting on the same in person or by proxy at any annual, special, or other meeting of the stock- holders, conveyed for any purpose whatever. 3. The Trust Company, depositary designated hereunder, shall issue to the said stockholders certificates of beneficial interest in such denomination, and made out in the name or names of such person or persons, corporation or corporations, as the depositing certificate holders may direct, which certificates of beneficial interest shall be substantially in the form following, to wit: No. Shares. CEETIPICATES OF TRUST COMPANY, FOR THE DE- POSIT OF THE STOCK OP THE COMPANY. Trust Company, having received on deposit certain certificates of stock of the Company of the par value of one huftdred dollars each, in trust, under the provisions of an agreement dated the day of , 19 , between the holders of the certificates of the capital stock of the said Company, and A. B., C. D., and E. P., trustees, to which agreement the holder hereof assents by receiving hia certifi- cate. * See § 25, General Corporation Law, FOKMS 475 Hekebt certifies, that is entitled, subject to the pro- viaions of said agreement, to an undivided equitable interest in the said deposited shares, equivalent in amount to the proportion that the number of shares for which this certificate is issued shall bear to the total number of shares of said stock deposited, without, how- ever, the right to vote on any of said shares, which right is ex- clusively vested in, and is to be exercised by, the trustees named In said agreement and their successors; or a pro rata proportion of the price paid to said trust company, if said shares are sold as pro- vided in said agreement. Upon the termination of the trust upon which the said stock was deposited, the holder hereof will be entitled to receive from this company, upon surrender of this certificate, duly indorsed, a certifi- cate for shares of the capital stock of said Company so deposited, unless said deposited certificates shaU have been sold, as provided in said agreement, and the purchase money paid to said trust company; in which event the holder hereof will be entitled, upon like surrender, to receive, in lieu of his said shares, his pro rata proportion of the said purchase money so paid to this company. The interest in said stock repre- sented by this certificate is assignable only by transfer on the books kept by the said trust company for that purpose, by the holder hereof in person or by proxy, upon surrender of this certificate properly as- signed. Dated . 19 . TKUST COMPANY. BY 4. The said certificates so issued may be transferred in person or by attorney from time to time, and new certificates issued by the trust company, as therein provided; and the deposit of the said share certificates and the acceptance of the trust company certifi- cates shall constitute the depositors parties hereto with the same effect as if they had signed this agreement. 5. The trustees and their successors are authorized to sell and dispose of the said capital stock so deposited, to any party or parties, corporation or corporations, upon the consent of ninety per cent, in amount of the holders appearing on the books of tne trust company, of the said certificates of beneficial interest, for such consideration in money as the said ninety per cent, may agree upon, and when so agreed upon, the trust company shall be notified thereof in writing, signed by all of the trustees. Upon receipt of such notice in writing so signed, the trust company shall deliver up the said certificates held by it hereunder to the said trustees, or as they may direct, on receiving the consideration money men- tioned in the said notification. ^476 FORMS 6. The said trustees shall and are hereby authorized to collect any and all dividend or dividends that may accrue upon the said stock, and after paying the charges and expenses of the trust com- pany and the costs and expenses of executing this trust, pay the balance remaining over to the depositing certificate holders as they may be properly entitled thereto. 7. In the event of the death, resignation, or refusal to act of any of the said trustees hereinbefore mentioned, the surviving or re- maining trustees may designate a successor, by making the said designation in writing and filing the same with the trust company, and the certificate or certificates of the said Company standing in the name of the trustees may be indorsed or transferred by any successor trustees for the time being with the same effect as if indorsed and transferred by the trustees herein- before mentioned, and the successor trustees shall have and may join in exercising the power of sale and notification in article fifth hereof, as therein provided, and all other powers and trusts hereunder. 8. The Trust Company designated as herein provided, or its successors in the trust, shall be and remain the agent for the transfer of the capital stock of the said Company until the expiration of the tmst hereby created. It and its successors shall receive a reasonable compensation for its and their services, counsel fees and expenses as such transfer agent, and in the execution of this trust, to be paid by the Company, and as aforesaid. It or any successor may resign this trust at any time by giving thirty days' written notice of its in- tention to resign, directed to all and delivered to any one of the trustees hereunder or their successors. 9. None of the parties hereto assumes any personal liability for anything done or omitted to be done by them, or any of them, in good faith, nor for the act of any agent or attorney employed by them in the execution of the trust. 10. In case of the resignation of the trust company, or its refusal to continue to act as trustee, or its removal from the trust, ^ successor trust company trustee, for the purpose of executing this trast, may be appointed by a majority of the trustees then acting hereunder. 11. The trustees ^all keep a record of their proceedings, and they may act by a majority of their whole number at any regular or special meeting convened on notice, or by writing signed by such majority without a formal meeting. The power of the trustees to vote, sell, or consent on or in respect to the slaves deposited with the trust company herein, shall deter- mine on the day of , 19 , or sooner, upon con- sent in writing of the trustees delivered to and lodged with the said FORMS 477 trust company, and the said voting trustees are hereby fully em- powered to give and deliver such consent at any time in their sole and absolute discretion. Upon such expiration or termination, the said shares of stock of the Company, then held hereunder, shall be distributed among the registered holders of the said stock trust certificates of beneficial interest, pro rata, upon the surrender of such stock trust certificates of beneficial interest, duly indorsed, to the trust company. This instrument, or any other paper in writing required by this instrument to be signed or executed hereunder, may be executed in any number of concurrent instruments of similar tenor, or may be signed or executed in person or by attorney in fact duly acknowl- edged. In V7ITNESS WHEKEOF, the parties of the first part have executed these presents, by depositing their said stock, as herein provided, and the said parties of the second part have executed these presents by aflSxing their signatures thereto. A. B., C. D., E. F., Voting Trustees, Stockholders. FORM No. 10. Proxy. See § 26, General Corporation Law.* Know all men by these presents. That I, do hereby constitute and appoint attorney and agent for me and in my name, place and stead, to vote according to the number of votes that I should be entitled to vote, if then personally present at the annual [or special'\ meeting of stockholders of the Company, to be held on the day of , 19 , and at any adjourned meet- ing thereof ; and I hereby revoke all proxies heretofore given by me. In witness whereof, I have hereunto set my hand and seal this day , 19 . [seal.] In presence of * A proxy is valid only for a period of eleven months from the date of execution unless a specified limited time be mentioned. See § 26, General Corporation Law. 478 FORMS FORM No. 11. Petition to Set Aside Election of Diiectors. See § 32, General Corporation Law. In the Matter of The Election op Directors op THE Company. To the Supreme Court: The petition of , a stockholder of the Company, a corporation, respectfully shows to the court as follows: I. That said corporation was on the day of , 19 , duly organized under the laws of the State of New York for the purpose of [state nature of business], and is still engaged in such corporate business. II. That the principal business ofSce of said Company is located at III. Your petitioner states that on the day of , 19 , at [state place] an election of directors of said Company was pretended to be held, at which the following named persons are al- leged to have been elected directors: ; that said per- sons assumed to be directors by reason of such election and have organized and now claim to act as the board of directors of such company. IV. That annexed hereto and marked Exhibit is a true copy of the record of the proceedings of such election. V. That said election was invalid and of no effect : [State reasons.] VI. Your petitioner alleges that at the date of such election, and for more than ten days prior thereto, your petitioner was and now is a stockholder of said Company owning shares of its capital stock, and that he attended and objected to said illegal election. VII. That your petitioner is aggrieved by and complains of said election and the proceedings, acts and matters touching the same. VIII. That days' notice of this application has been duly served upon th£ adverse parties and upon those to be affected thereby, as well as upon said Company. Your petitioner prays that this court proceed in a summary way to hear the affidavits, proofs and allegations of the parties hereto, or otherwise inquire into the matters or causes of complaint, an^ establish a new election; or that the court make such order and give such relief as right and justice may require. Petitioner. FORMS 479 State of New York, County of , **• , being duly sworn, states that he has read the fore- going petition and knows the contents thereof; that the same is true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Petitioner. Sworn to before me this day of , 19 . FORM No. 12. Consent and Certificate of Consent or Vote to Extend Corporate Existence. See § 37, General Corporation Law Consent of Stockhoij)ees. The undersigned stockholders of the Company, a domestic stock corporation, owning two-thirds in amount of its capital stock;* that is to say, shares of the whole number of shares of capital stock of said Company, do hereby consent that the corporate existence of said company be extended for the period of years beyond the time specified in its original certificate of incorporation [or for a further period of years beyond the time specified in any certificate of extension of corporate existence theretofore filed]. In witness wheeeof, we have hereunto set our hands opposite the number of shares of stock owned by us, respectively, in such Com- pany, this day of j 19 j in duplicate, t , shares. — ' , shares. , shares. * Or, of its entire number of shares without nominal or par value. + To be filed in the offices of the Secretary of State and the clerk of the county where the corporation has its principal place of busi- ness. 480 FOEMS Cektiticate of Consent oe Vote. The undersigned, , President [or Vice-President] and , Secretary [or Assistant Secretary] of the Company, a domestic stock corporation, hereby certify: That the written consent of the stockholders of said Company, hereto attached, owning two-thirds in amount of its capital stock,* has been given [or, by vote at a special meeting of the stockholders of the Company, called for that purpose, upon the same notice as that required for the annual meetings] to extend the existence of said Company for a period of years beyond the time specified in its original certificate of incorpo- ration [or for a further period of years beyond the time specified in any certificate of extension of corporate existence there- tofore filed]. [In the case of a vote at a special meeting of stockholders attach a copy of the resolution adopted at such meeting.] In witness whereof, we have subscribed and acknowledged this certificate under the seal of the corporation this day of ,19 . [coeporate seal.] President [or Vice-President]. Secretary [or Assistant Secretary], State of New Yoek, County of , "" On this day of > 19 » before me personally came [names of officers signing"] to me known, and known to me to be the individuals described in and who executed the foregoing cer- tificate, a,nd they severally acknowledged to me that they executed the same. FORM No. 13. Waiver of Notice of Meetings. § 42, General Corporation Law. We, the undersigned, being all of the subscribers to the capital stock of the Company, do hereby call the first meeing of the incorporators of said Company, to be held at in the City of , County of , at A. M., on the day of t 19 , for the pur- * Or, of its entire number of shares without nominal or par value. FOBLIS 481 pose of adopting by-laws, considering and acting upon a proposal for the issue of the capital stock of the corporation in exchange for property, and transacting all other business as may be necessary or convenient in connection with the organization of said corporation; and we do hereby waive all requirements as to notice [for meetings of stockholders, add: and publication of notice] of the time, place and purpose of said first meeting, and consent to the transaction thereat of any and all business pertaining to the affairs of said Company. Dated, , 19 . Note. — The above waiver of notice may be adapted for annual and special meetings of stockholders and for directors' meetings. FORM No. 14. Reference to Waiver of Notice in Proceedings. See § 42, General Corporation Law. That said meeting of stockholders was so held without notice to them [and without publication of notice'], and without the lapse of the period of time prescribed by law, all the requirements of law and of the by-laws respecting notice [and publication of notice'] of the time, place and purposes of said meeting having been waived in writing by every stockholder of said Company, as follows: [or, a copy of which waiver is hereto attached]. FORM No. 15. Certificate of Proceedings of Special Meeting of Stockholders to Authorize Change of Corporate Name. See § 66, General Corporation Law. We, ; president, and , secretary of , a stock corporation organized under the laws of the State of New York, do hereby certify as follows: That a special meeting of the stockholders of said corporation to vote upon a resolution to change the name of said corporation to , the name it proposes to assume, was called upon due notice of the time and place of said meeting, published at least once a week for two successive weeks immediately preceding the date of said meeting, in , a newspaper published in the county 31 482 FORMS wherein the principal business oflSce of the corporation is located. A copy of such notice was, on or before the day of the first publica- tion thereof, filed in the office of the Secretary of State, and on or before the first day of publication thereof, a copy of said notice was served personally upon each stockholder or mailed to him at his last known post-office address. A copy of said notice is as follows: "A special meeting of the stockholders of will be held on the day of , 19 , at o 'clock in the noon, at the office of the Company, No. , Borough of , City of New York, for the purpose of voting upon a resolution to change the present name of the Company, , to ; the name it proposes to assume, and for the transaction of such other business as may properly come before said meeting. Dated , 19 . President [or Vice-President]. Secretary. ' ' Affidavits of publication of notice of said meeting and of the ser- vice of said notice, and the certificate in duplicate of the Secretary of State, as provided for by section 66 of the General Corporation Law, were presented to said meeting, and said affidavits and one of said duplicate certificates are hereto attached. That at said meeting the holders of record of shares, constituting at least two-thirds of the entire capital stock of said corporation issued and outstanding [in case the corporation has stock rvithout nominal or par value, state: constituting at least two-thirds of the entire number of shares of the corporation issued and out- standing] voted in favor of the following resolution: RESOLVED, that the present name of the corporation , be changed to the name, , in conformity with the pro- visions of section 66 of the General Corporation Law of the State of New York. That said resolution was duly adopted at said meeting on the day of , 19 . Said was organized under the Business Corporations Law of the State of New York and its certificate of incorporation was filed in the office of the Secretary of State on the day of , 19 . Said corporation was originally incorpo- rated under the name of , its present name, which has not heretofore been changed. The name which the corporation desires to adopt is FOKMS 483 In witness whereof, we have executed this certificate of the pro- ceedings of said special meeting in duplicate this day of ,19 . President [or Vice-President]. r Secretary. State op New York, County of , **■ and , being duly and severally sworn, says that said is the President [or Vice-President] and said is the Secretary of Company ; that they have read the foregoing certificate and know the contents thereof, and that the same is true of their own knowledge. Sworn to before me this day of , 19 . State of New York, County of > * " On this day of , 19 , before me personally came and , to me known and known to me to be the persons described in and who executed the foregoing certifi- cate, and they severally acknowledged to me that they executed the Note — The above certificate must be filed in the office of the Sec- retary of State, together with the affidavits of service and publication of notice of the meeting and also one of the certificates of the Secretary of State previously issued by him in duplicate. A dupli- cate original of the certificate of proceedings, together with the affidavits and certificate above mentioned, must be filed in the office of the clerk of the county in which the principal business office of the corporation is located, or if it has no business office, in the office of the clerk of the county in which its principal corporate property is situated. Within forty days after filing the copy of the notice of meeting in the office of the Secretary of State, an affidavit of the publication of the resolution adopted at the meeting must be filed in his office. Thereafter the corporation must assume its new name and no other. The resolution must be published once a week for two successive weeks in the newspaper in which the notice of meeting was published. See § 66, General Corporation Law. 484 FORMS FORM No. IS. Consent by Stockholders to Dissolution. See § 221, General Corporation Law. We, the undersigned, , president [or vice-president] and , secretary [or treasurer} of Com- pany, a domestic stock corporation, do hereby make and file the fol- lowing certificate: That a meeting of the board of directors of said Company called for the purpose of voting upon the proposition that the corporation be forthwith dissolved, was held at , in the Borough of , City of , State of New York, on the day of , 19 , at o'clock in the noon; that at least three days' notice of said meeting was given to each director, as appears by the affidavit of , hereto attached [or, notice of which meeting having been duly waived in writing by each director, as appears by the waiver of notice hereto attached] ; that at said meeting the following resolution was adopted by a vote of a majority of the whole board: RESOLVED, that in the opinion of the board of directors it is advisable to dissolve this corporation forthwith, and that a meeting of the stockholders of the corporation be called for the purpose of voting upon a proposition that this corporation be dissolved forthwith, and that such meeting be held at , in the City of , State of , on the day of 19 , at o'clock in the noon. [The meeting must be held not less than thirty nor more than siaty days after the adoption of the foregoing resolution.] That a notice stating the purpose of said stockholders' meeting' and the time and place thereof was published in , a newspaper published and circulating in [New Torlc] County, where- in the corporation has its principal office, once a week for three weeks successively next preceding the time appointed for holding said meet- ing, as appears by the affidavit of publication hereto attached. That on or before the day of the first publication of said notice of stockholders' meeting, a copy thereof was served personally on each stockholder oSmailed to him at his last known postoffice address, aa appears by the affidavit of , hereto attached. [In case all the stockholders consent in writing to waive notice of meeting and that the meeting be held in less than thirty (or more than sixty) days after the adoption of the resolution by the board of directors, state: Attached hereto is a consent signed by the hold- ers of all of the shares of stock, issued by the corporation and out- FOEMS 485 standing, waiving notice of said meeting of stockholders and of pub- lication thereof, and also of the provision of § 221 of the General Corporation Law that such meeting shall take place not less than thirty nor more than sixty days after the adoption of the resolu- tion of the board of directors.] That said meeting of stockholders was held on the day of , 19 , at o 'clock in the noon, at , in the City [town or village] of , County of , State of , in which the last preceding annual meeting of the corporation was held. That at said meeting the holders of and to be issued to se- cure the payment of bonds of said Company, of dollars each. Said bonds are to be dated the day of , 19 , and are to mature in years thereafter, and to bear interest from the day of , 19 , until maturity, at the rate of per centum per annum, payable on the day of and of each year. In witness wheebof, we have hereunto set our hands opposite the number of shares of stock of said Company owned by us. Dated, , 19 . , shares. , shares. , shares. ' Stockholders. State of New Yoek, County of , On this day of > 19 > before me personally came , to me known, and known to me to be the persons decribed in and who executed the foregoing consent, and they severally acknowledged to me that they executed the same. FORM No. 18. certificate of Consent or Vote to Mortgage. See § 6, Stock Corporation Law. We hereby certify that stockholders holding at least 'owo-thirds of the capital stock [or, of the total number of shares issued and out- standing'] of the Company, a corporation organized and existing under the laws of the State of New York, have con- sented in writing to the mortgage made and executed by the 488 • FORMS Company to , as trustee, dated the day of , 19 , copies of which consent and mortgage are hereto attached [or hy a vote at a special meeting of the stockholders called for that purpose, upon the same notice as that required for the annual meet- ings of the Company]. In witness whereof, the President [or Vice-Tresidenf] and the Secretary [or Assistant Secretary\ ot said Company have subscribed the foregoing certificate, under the seal of said cor- poration, this day of , 19 . Company, By President [or Vice-President]. [COKPORATE SEAL.] Secretary [or Assistant Secretary.] State of New York, County of , **••■ On the day of , in the year , before me personally came and , to me known, who, being by me duly sworn, did depose and say that he, the said resided in the City of , State of , and is the president of the Company, and that he, the said resided in the City of , State of , and is the secretary of the Company, the corporation described in and which executed the foregoing certificate; that they knew the seal of the said corporation; that the seal affixed to said certificate was such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that they signed their names thereto by like order. FORM No. 19. Unanimous Consent to Change Principal Office and Place of Business. See § 13, Stock Corporation Law. The undersigned stockJj^gWers of the Company, a domes- tic stock corporation, being the owners of all the shares of stock of said corporation issued and outstanding, as appears by the annexed affidavit of the custodian of the stock-book of said Company [see Form 25], do hereby consent in writing that the principal office and place of business of said Company, named in the certificate of incor- poration, to wit: the [city, county or town] be changed to the City of , Borough of , County of , State of New York. FOKMS 489 In witness whekeop, we have hereunto signed our names op- posite the number of shares of stock owned by us, respectively, thig day of , 19 . , Shares, , Shares, , Shares, Stockholders. Note. — This consent must be acknowledged by all of the stock- holders (see Form No. 17) and filed in the oflace of the Secretary of State. See § 13, Stock Corporation Law. FORM No. 20. Certificate of Vote or Consent to Change Principal Office and Place of Business. See § 13, Stock Corporation Law. The undersigned, the president, secretary and a majority of the directors of the corporation hereinafter named, do hereby certify: That the name of said corporation is the Company. That the principal office and place of business of said corporation was originally located in the [.city, town and county, and also state the city, town and county to which it may have been subsequently changed'], in the State of New York. That said corporation desires to change its principal office and place of business to the [city, town and county] in the State of New York. That it is the purpose of said corporation actually to transact and carry on its regular business from day to day at such last-named place. That at a special meeting of the stockholders of said Company, called for that purpose, and held at on the day of , 19 , stockholders owning shares of the capital stock of said corporation [or, shares of the corporation issued and outstanding], in person or by proxy, adopted the follow- ing resolution: Resolved, That the principal office and place of business of Company be changed from to , and that the president and secretary, and directors, or a majority thereof, be authorized and directed to execute the certificates required to be filed by Section 13 of the Stock Corporation Law, in order to ef- fectuate such change pursuant to law. [Or, That such change has been authorized by the unanimous con- 490 FORMS sent of the stockliolders expressed in writing, duly acknowledged and filed in the office of the Secretary of State.] That the names of the directors of said eorporatiou and their respective place of residence are : Names. Residence. In witness whereof, we, the President and Secretary, and a majority of the directors of said Company, have here- unto signed this certificate, in triplicate,* this day of ,19 . '■ , President, , Secretary, A Majority of Directors. State of New York, County of , '*■• being duly and severally sworn, depose and say that said is the president of Company, the corporation mentioned in said certificate; that said is the secretary, and that are a majority of the directors thereof; that they have read the foregoing certificate and know the contents thereof; that the same is true of their own knowledge. Sworn to before me this day of , 19 . , President, , Secretary, A Majority of Directors. * For filing in the various oflSces. See § 13, Stock Corporation Law. FORMS 491 FORM No. 21. Certificate of Merger. See § 15 Stock Corporation Law. The undersigned, Company, hereby certifies: I. That the Company is a domestic stock corpora- tion existing under the laws of the State of New York [or, a foreign stock corporation duly authorised to do business in the State of New Torlc']. II. That the Company is a domestic stock cor- poration existing under the laws of the State of New York [or, a foreign stock corporation duly OMthorized to do business in the State of New York'], organized for [or engaged in] business similar or incidental to that of the undersigned corporation. III. That on the day of , 19 , the undersigned Company lawfully owned all the stock of the Company, and on said date the board of directors of said Company adopted the following resolution to merge the Company with the Company. " Whereas, the Company was organized for [or is engaged in] business similar or incidental to that of the under- signed ■■ Company, and " Whereas, the Company lawfully owns all the stock of the Company, " Eesolved, that the undersigned Company merge Company, and that this company execute and file in the office of the Secretary of State a certificate of such ownership and of this resolution." In witness whereof the undersigned Company has caused this certificate to be executed by its duly authorized officers and its common seal to be affixed hereto this day of , 19 . Company. By [Corporate seal.] President. Attest: Secretary. State of New York, County of , On the day of , in the year , before me personally came , to me known, who, being by me duly sworn, did depose and say that he resided in ; 492 FOBMS that he is the president of Company, the corpora- tion described in and which executed the above instrument; that he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal ; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. FORM No. 21a. Consolidation Agreement, etc. See §§ 7, 8, Business Corporations Law. This agkeement, made the day of , 19 , between , party of the first part, and party of the second part, under the corporate seals of said companies. WITNESSETH: That , said party of the first part, is a corporation organized under the laws of the State of New York, for the purpose of carrying on the business of the manufacture and sale of That , said party of the second part, is a corporation organized under the laws of the State of New York, for the purpose of carrying on the business of [must ie the same business or of a similar nature]. That in consideration of the mutual covenants and agreements herein contained, the said parties hereto do hereby merge and con- solidate such corporations into a single corpol-ation under and in pursuance of the laws of the State of New York in such case made and provided, and by these presents. They do hereby covenant and agree upon and prescribe the terms and conditions of such consolidation and the mode of carrying the same into effect, which said terms and conuicjons and mode of carrying the same into effect, they mutually covenant and agree to observe as follows, to wit: 1. That the name of the corporation hereby formed by said con- solidation shall be Company. 2. That the number of directors which shall manage its affairs shall be « 3. That the names and post-office addresses of the directors of such new corporation for the first year are as follows, to wit : Names of Directors. Post-office Addresses. 4. That the term of existence of such new corporation shall be years. FORMS 493 5. That the town, city and county in which the operations of such new corporation are to be carried on are the town of , the city of , county of , State of 6. That the town and county in this State in which its principal place of business is to be situated are the town of in the county of 7. That the amount of the capital stock [or, stated capital] of such new corporation is to be dollars, which sum does not exceed the fair aggregate value of the property, franchises and rights of the parties of the first and second parts hereto. 8. That the number of shares into which said capital stock* is to be divided is shares of preferred [or common] stock of the par value of each, land shares without nomi- nal or par value], and each stockholder of record shall be entitled on the election of directors, to as many votes as shall equal the number of his shares of stock, multiplied by the number of directors to be elected, and he may east all of such votes for a single director, or he may distribute them among the number to be voted for or any two or more of them as he may see 'fit. 9. That the manner of distributing such capital stock* among the holders thereof shall be as follows: The capital stock* of each of the corporations, parties hereto, shall be convertible into the capital stock* of said new corporation hereby formed, share for share, and upon presentation and surrender of any outstanding certificates of stock in either of said constituent corporations, parties hereto, certificates for like amounts of stock in said new corporation shall be issued to the holders thereof. In witness whereof, the said parties of the first and second parts have executed this agreement in duplicate, and have hereunto set their respective signatures, and have caused to be hereto afSxed the corporate seals of their respective corporations, of which they are respectively the directors, the date and year first aforesaid. [CORPORATE SEAL.] Attest: Secretary. [CORPORATE SEAL.] Attest : Secretary. Directors of ifresident. Directors of President, 494 FOKMS State of New Yoek, County of , **"" On the day of > 19 > before me personally came , to me known, who, being by me duly sworn, did depose , and say that he resides in the City cjf ; that he is the President of the Company, the corporation described in and which executed the above instrument; that he knew the seal of said corporation; that the seal affixed to said instrument was such corporate seal; that it was so aflSxed by order of the board of directors of said corporation, and he signed his name thereto by like order. Subscribed and sworn to before me this day of , 19 Notary Public. State of New York, County of , **•• On the day of > 19 » before me personally came , directors of Company, to me severally known to be the persons who severally executed the foregoing agree- ment, and severally acknowledged to me that they executed the same for the uses and purposes therein expressed. Notary Public. State of New York, County of , **•' On the day of , 19 , before me personally came , to me known, who, being by me duly sworn, did depose and say that he resides in the city of , that he is the president of , the corporation described in and which executed the above instrument; that he knew the seal of said cor- poration ; that the seal afSxed to said instrument was such corporate seal; that it was i^ affixed by order of the board of directors of .said corporation, and that he signed his name thereto by like order. Subscribed and sworn to before me this day of , 19 . Notary Public. FORMS 495 State of New York, County of , **"" On the day of > 19 > before me personally came , directors of Company, to me severally known to be the persons who severally executed tue foregoing agreement, and severally acknowledged to me that they executed the same for the uses and purposes therein expressed. Notary Public. Sworn Copt of Proceedings.* A special meeting of stockholders of , for the pur- pose of submitting to said stockholders the annexed agreement, dated , for the consolidation of with , under the name of , was held at the ofBce of , in the City of , Coiinty of , State of New York, on the day of , 19 , at o 'clock in the of that day. Said meeting was called upon notice of at least two weeks, speci- fying the time, place and object thereof, and addressed to each stockholder at his last known post-office address and deposited in the post-office, postage prepaid, and published for at least two suc- cessive weeks in , one of the newspapers of county, in which county said corporation has its place of business. Pursuant to such notice the stockholders of the met at , in the city of , county of , State of , on the day of , 19 , at o'clock in the noon. There were present at such meeting in person or by proxy stock- holders owning shares of the stock, being at least two-thirds of the stock [or, of the total vMrriber of shares'] of said corporation. The meeting was organized by the election of as Chair- man, and as Secretary thereof. Proof by affidavit of the service of the notice of the meeting and the publication thereof was read and is hereto annexed. The annexed agreement was thereupon submitted to said stock- holders for their approval, and, after being considered, a vote was taken by ballot upon the question of approving or rejecting the same, pursuant to statute. The said ballots were duly cast in person or by proxy, and upon ' For each corporation separately. 496 FOBMS a canvass of such ballots it was found that the vote of stockholders owning shares of the stock were cast in favor of the ap- proval of said agreement for consolidation and no votes were cast against the approval of said agreement. The whole number of shares of the capital stock* of said corpora- tion is and the votes of stockholders which were so cast in person or by proxy in favor of the said agreement of the consolida- tion constitute all of the stock of said corporation. Thereupon said agreement of consolidation was declared duly ap- proved and adopted, and the meeting adjourned. In witness whereof, I have made, signed and sWom to the fore- going copy of proceedings in duplicate this day of , 19 . Secretary. State of New York, County of , being duly sworn deposes and says that he was elected to act, and did act as Secretary of a special meeting of the stock- holders of held for the purpose of considering the annexed agreement of consolidation dated , 19 , that the foregoing is a copy of the proceedings of said meeting, and is, in all respects, a correct copy of such proceedings and of all the proceedings of said meeting, and that notice of said meeting was given as aforesaid, pursuant to statute. Sworn to before me this day of ,19 Notary Public. State of New York, County of , **"' of said county being duly sworn, deposes and says, that he is the manager of the , publishers of the , a newspaper printed and published in , in said county, and that a notice, of which the annexed is a printed copy, cut from said newspaper, has been published in said news- * In case of a corporation having stock without nominal or par value, substitute "stated capital" for "capital stock." FORMS 497 paper, for twelve consecutive days, commencing on the day of ,19 , Sworn to before me this day of , 19 . Notary Public. Notice to Stockholders. , 19 . A special meeting of the stockholders of will be held on the day of > 19 » at o'clock . M., at the ot&ee of such company, at , in the city of , for the purpose of voting upou a proposition to con- solidate such company with , pursuant to Sections 7 to 11 of the Business Corporations Law, and for such other business as may properly come before said meeting. President. Secretary. State of New York, County of , **"" , being duly sworn, deposes and says that he resides in the city of , and is over twenty-one years of age; on the day of , 19 , he mailed a copy of the fore- going notice to each of the following named persons by depositing the same in the post-oflice at in a sealed envelope with full postage prepaid thereon, addressed to said persons respectively as follows: Sworn to before me this day of , 19 . Notary Public. 32 498 FORMS FORM No. 22. Notice of Annual Sleeting. See § 25, Slock Corporation Law. The annual meeting of the stockholders of the Company for the election of directors for the ensuing year and for the transaction of such other business as may properly come before the meeting,* will be held at the office of the Company, No. street in the City of on the day of , 19 , at o 'clock in the noon. Transfer books will close on the day of , 19 , and will open on the day of , 19 . Dated, , 19 . Secretary. [Notices of special meetings should state the purposes for which ^they called, and in most instances this requirement is imperative.] FORM No. 23. Unanimous Consent of Stockholders to Increase or Reduce Number of Directors. See § 26, Stock Corporation Law. We the undersigned stockholders of the Company, personally or by our duly authorized proxies, constituting the holders of record of its entire capital stock [or, of its entire number of shares'^ issued and outstanding as appears by the affidavit of , the custodian of the stock book of said corporation, hereto attached,t do hereby consent that the number of the directors of said Company be [increased or reduced] from to Signed in duplicate} this day of , 19 . Stockholders NoTa — It is advisable to have each stockholder acknowledge the foregoing consent, although § 26 of the Stock Corporation Law does not so require. # * Inspectors of election of stock corporations may be appointed in the manner prescribed in the by-laws. The inspectors of the ilrst election of directors and of all previous meetings of the stockholders must be appointed by the board of directors named in the certificate of incorporation. See § 31, Stock Corporation Law. t For affidavit of custodian of stock book see Form No. 25. } For filing in the offices where the original certificates of incorpo- ration were filed. FORMS 499 FORM No. 24. Transcript of Proceedings of Meeting Increasing or Reducing Number of Directors. See § 26, Stock Corporation Law. The following is a true copy of the minutes of a meeting of the stockholders of the Company, a stock corporation duly organized and existing under the laws of the State of New York, held at , in the City of , State of New York, on the day of , 19 , which minutes truly set forth the proceedings had at said meeting. Special meeting of the stockholders of Company, held the day of , 19 , at street, in the City of , State of New York, at o'clock in the noon, for the purpose of voting upon the proposition to lincrease or decrease'^ the number of directors of said Company from to , the Secretary of the Company, reported that two weeks' written notice of said special meeting was served upon all stockholders of record, personally or by mail, directed to each stockholder at his last known post-office address. The affidavit of , attached to a copy of said notice showing proper service thereof, was presented and ordered filed. Stockholders owning a majority [or more than a majority] of the stock of said corporation were present in person or by proxy as follows : Names of Stockholders Number of Shares It was moved, seconded 'and carried that the number of directors of Company be [increased or reduced] from to . and that Section , of Article , of the by-laws be amended so as to read as follows: The inspectors of election,* duly reported that stockholders owning shares of the stock of the Com- pany, constituting [more than, or at least a] majority of the total number of shares issued and outstanding, voted in favor of said motion [and stooTcholders owning shares of the stock of said company voted in the negative]. Total number of shares voted Total number of shares not voted Total shares issued and outstanding The meeting then adjourned. * See §§ 30 and 31. General Corporation Law. 500 FORMS In witness whereof the undersigned president and secretary of said meeting have signed and verified this transcript, in duplicate, this day of , 19 . , President. , Secretary. State op New York, County of , **"' and , being severally and duly sworn, state that the said was the president, and that the said was the secretary of a special meeting of stockholders of Company, held at in the City of , State of New York, on the day of , 19 ; and that the foregoing is a true transcript of the proceedings had at said meeting, and duly entered in the minutes of said com- pany. , President. , Secretary. Sworn to before me this day of , 19 . FORM No. 25. Afidavit of Custodian of Stock Boole See § 26, Stock Corporation Law. State or New York, County of , **•• , being duly sworn, states: That he is the of the Company; that he is the custodian of the stock book of said corporation ; and that the persona who have signed the [foregoing or attached] consent, either in person or by proxy, are the holders of record of the entire capital stock [or number of shares} of said corporation issued and out- standing. ^ Sworn to before me this day of , 19 FORMS 501 FORM No. 26. Oath of Inspectors of Election. See § 31, Stock Corporation Law. State op New York, County of , **•■ and , being duly sworn say that they will faithfully execute, with strict impartiality, and according to the best of their ability, the duties of inspectors of election at the annual [or special*] meeting of the stockholders of the Company to be held on the day of » 19 > at o'clock in the noon. Sworn to before me this day of , 19 . Note. — ^Directors and ofScers of corporations (other than moneyed corporations such as banks, etc.) may act as inspectors of election. See § 31, Stock Corporation Law. Note. — The above certificate and oath (Form No. 26) must be filed in the office of the clerk of the county in which the election or meeting is held. FORM No. 27. Certificate of Inspectors of Election. See § 31, Stock Corporation Law. The undersigned inspectors of election, duly appointed in the manner prescribed in the by-laws to act at the annual [or special*] meeting of the stockholders of Company, hereby make the following certificate of the result of the vote taken at said meeting: Said annual [or special] meeting of the stockholders was held OQ the day of ; 19 , at the office of the Company in the City of , at o'clock in the noon, for the purpose [among other things] of votes representing shares of the cap- ital stock of the company were cast, of which votes representing shares were east for the following named persons who were accordingly elected directors for the ensuing year: * See §§ 30, 31, General Corporation Law. 502 FOKMS [Or, state the nature of amy proposition or resolution adopted.'\ In witness whekeof, we have signed our names hereto, in dupli- cate, this day of , 19 . State op New York, County of , **" On this day of , 19, before me personally came and , to me known, and known to me to be the individuals described in and who executed the foregoing certificate, and they severally acknowledged to me that they executed the same. FOHM No. 28. Stock Book. See §§32 and 33, Stock Corporation law. Names of Stock- holders* Place of Residence Number Shares of Stock held Time when became owner Amount paid thereon From or to whom transferred 'Alphabetically arranged FORMS 503 FORM No. 29. Annual Report to Secretary of State. See § 34, Stock Corporation Law.* Annual Eeport op Company. The undersigned, , [president, vice-president, secretary or treasurer'^ of Company [o stock corporation organized under the laws of the State of New Yorh; [or a foreign corporation organized under the laws of the State of **] [doing business without the United States\] hereby makes the fol- lowing report for said company, as of the first day of January, 19 : 1. The capital stock [or stated capital] of said company is dollars ; the proportion actually issued is dollars, of which amount dollars was issued for property purchased. (See § 55, Stock Corporation Law.) 2. The debts of said company amount to [or at least equal] dollars. 3. The assets of said company amount to [or at least equal] dollars. 4. l^Names and addresses of all the directors and officers of the company, and in the case of a foreign corporation, the name of the person legally designated as the person upon whom process may he served within the State of New Torlc.t] ^President, Vice-President, Secretary or Treasurer.] Note. — § 34, Stock Corporation Law, does not require the annual report to be acknowledged or sworn to. It must be filed in the oMee of the Secretary of State. * Not applicable to moneyed and railroad corporations. ** The report must be filed before January first, but there is no penalty for failure to file, except after written request by credi- tor or stockholder. See § 34, Stock Corporation Law. t In such cases the report must be filed before May first. Idem. t See § 16, General Corporation Law. 504 ' FOEMS FORM No. 30. Certificate of Common Stock. See §§ 50, 51, Stock Corporation Law. Number < Shares CAPITAL, $ The Company. Incorporated under the Laws of the State of New York. Fref erred stock shares, $100 each. shares without nominal or par value. Common stock, shares, $100 each. This is to certify that is the owner of shares of the common t Stock of the Company, transferable only on the books of the company by the holder thereof, in person, or by duly authorized attorney upon surrender of this certificate endorsed. [COKPOKATE SEAL.]t New York, , 19 . President [or Vice-Presidenf]. Secretary [or Treasurer], [Endorsements.1 General Corporation Law. For value received, hereby sell, assign and transfer to shares of the capital stock represented by the with- in mentioned certificate and do hereby constitute and ap- point attorney to cause the same to be transferred on the books of the company. Witness jay hand and seal this day of , 19 . In presence of [seal.] t Or, shares without nominal or par value. } Where no corporate seal has been adopted, see note to § 11, FOBMS 505 FOSM. No. 31. Certificate of Partly Paid Stock. See § 60, Stock Corporation Law. Number Shares. CAPITAL, $ The Company. Incorporated under the laws of the State of New York. Preferred stock, shares, $100 each. shares without nominal or par value. Common stock, shares, $100 each. This is to certify that is the owner of shares of the partly-paid* stock of Company (which partly-paid stock consists of shares of * stock, of the par value of $ each, being the whole [or a parti] of the above named authorized capital stock.) This certificate is transferable only on the books of the company by the holder hereof, in person or by duly authorized attorney, upon surrender hereof. per cent, of the par value of shares of said * partly-paid stock has been paid hereon. The said and his assignees shall not be subject to any liability except for the payment to said com- pany for the amount remaining unpaid upon this certificate, as and when called by the board of directors, and for the payment of any indebtedness to the employees of said company, pursuant to sec- tion 57 of the Stock Corporation Law. Witness the seal of the company and the signatures of its presi- dent [or vice-president] and secretary [or treasurer'], this day of , 19 . President {or Vice-President']. [CORPORATE seal.] Secretary [or Treasurer]. [Payment of the respective installments, and the dates and amounts thereof, should he endorsed on the certificate.] For value received hereby sell, assign and transfer to shares of the capital stock represented by this * Preferred or common. See § 51. Stock Corporation Law. t May be the whole or any part of the capital stock, § 60, Stock Corporation Law. 506 FORMS certificate, and do hereby constitute and appoint attorney to cause the same to be transferred on the books of the company. Witness my hand and seal this day of 19 . In presence of [seal.] FORM No. 32. Certificate of Preferred Stock. See § 61, .Stock Corporation Haw. Number Shares. Capital, $ Company. Incorporated Under the Laws of the State of New York. Common stock, shares, $100 each. shares without nominal or par value. Preferred stock, shares, $100 each. Full-Paid and Non-Assessable. This is to certify that is the owner of shares of the preferred stock of the Company, transferable only on the books of the company by the holder in person, or by his duly authorized attorney, upon the surrender of this certificate properly endorsed. The holder of the preferred stock represented by this certificate is entitled to receive, and_ the Company is obligated to pay, annually [or semi-annually] out of its surplus or net earnings, a cumulative dividend of per centum before any dividend is declared O' paid upon any other stock. In case- the net profits in any year shall be insufficient to pay said preferred dividend, either in whole or in part, any unpaid portion thereof shall become a charge against the net profits of the Company, and shall be paid in full therefrom before any dividends are paid or declared upon any other stock. Said preferred stuck is subject to redemption, in the discretion of the company, at any time after years from the day of , 19 , upon payment of dollars per share and all accumulated dividends, if any. Said preferred stock is not entitled to vote at stockholders' meet- ings.* * See note to § 23, General Corporation Law. FORMS 507 Witness the seal of the company and the signatures of its presi- dent [or vice-president] and secretary [or treasurer} this day of , 19 . [corporate seal.] [President or Vice-President.} {Secretary or Treasurer.] FORM No. 33. Notice of Meeting to Authorize Issue of Preferred or Common Stock.* See § 61, Stock Corporation Law. A special meeting of the stockholders of the Com- pany will be held at No. street, in the City of , State of New York, on the day of i 19 » at o'clock in the noon, for the purpose of voting upon a proposition to reclassify the capital stock [or stated capital] of said company, so that its present capital stock [or stated capital} of dollars, consisting of shares of com- mon stock of the par value of dollars each, [or of stock without nominal or par value} shall consist of shares of common stock and shares of preferred stock, all of the par value of dollars each; said preferred stock to have no voting power, t to be entitled to a cumulative pre- ferential annual dividend of per annum, and to be re- deemable at par at the discretion of the company years from the date of issue. By order of the Board of Directors. Secretary. * Or both ; also different classes of preferred stock. t See note to § 23, General Corporation Law, ante. Note. — The foregoing notice must be printed once a week for two successive weeks immediately preceding the date of the meeting, in a newspaper published in the county in which the meeting is to be held or delivered personally or mailed, not less than ten nor more than twenty days before the election, to each stockholder. The by-laws may prescribe both methods. See § 25, Stock Corporation Law. 508 FOBMS FORM No. 34. Certificate of Proceedings of Meeting to Authorize Preferred or Common Stock.=<= See § 61, Stock Corporation La*. We, , president [or vice-president] and , secretary [or, assistant secretary] of the Company, a stock corporation organized under the laws of the State of New York, do hereby certify as follows: That a special meeting of the stockholders of said company to vote upon a proposition to reclassify the capital stock [or stated capital'] of said company, as specified in the notice for said meeting (hereinafter referred to and made a part of this certificate), was duly called, upon due notice of the time and place of said meeting, published at least once a week for two successive weeks immediately preceding the date of said meeting, in , a newspaper published in the county of , where said meeting was held. Such notice was also given in the manner required by the by- laws for the annual meeting of said company, to wit: [hy mailing the same to each stockholder of the said company, at his last Tcnown post-office address at least days before the date of said meeting.] A copy of said notice is as follows: [see Form No. 33.] Proof of due publication of the notice of said meeting and of the service of the said notice by mailing appears by the afBldavits of and attached. That at said meeting, the holders of record of shares, constituting [more than or at least] two-thirds of the capital stock [or, number of shares'] of said company voted in favor of the follow- ing resolution: " Eesolved, that the capital stock [or, stated capital] of the com- pany, now consisting of shares of common stock of the par value of dollars each [or, stock without nominal or par value] of which shares have been issued and are outstanding, and shares remain unissued, be reclassified into common and preferred stock, consisting of shares of common sftck [or, stock without nominal or par value] and shares of preferred stock, of the par value of dollars each. "That the shares of stock remaining unissued shall constitute the preferred stock hereby created, the stock issued and outstanding remaining common stock as heretofore. * Or both ; also different classes of preferred stock. FOKMS 509 " That said shares of preferred stock shall be entitled to receive a cumulative preferential dividend of ■ per centum per annum, payable annually [or semi-annually'[ before any dividends are paid upon any other stock. " That said preferred stock shall not entitle the holders thereof to vote thereon, t " That said preferred stock shall, at the option of the company, be redeemable at par at its discretion years from the date of issue." In witness wheeeop we have executed this certificate of the proceedings of said special meeting, in duplicate,!: this ~ day of , 19 . State or New York, County of , [President or Vioe-Fresident.'] [Secretary or Assistant Secretary. 1 and , being duly and severally sworn, say: That said is the president [or vice-president'\, and said is the secretary [or Assistant Secretary'^ of the Company; that they have read the foregoing certificate and know the contents thereof, and that the same is true. Sworn to before me this day of , 19 FORM No. 35. Notice of Meeting to Increase or Seduce Capital Stock. See § 63, Stock Corporation Law. A special meeting of the stockholders of Company vrill be held at No. street, in the City of , on the day of , 19 , at o 'clock in the noon, for the purpose of [increasing or redv,cvng'\ the t See note to § 23, General Corporation Law. t For filing and recording in the offices where the certificates of in- corporation were filed and recorded. See § 5, General Corporation Law. 510 FORMS capital stock* [or, stated capital^ of said corporation from dollars, consisting of shares* of the par value of dollars each, lor without nominal or par vaiui'i to dollars to consist of shares,* ^or without nominal or par value} of the same par value, t Dated, , 19 . [President or Fice-President.J Secretary. FORM No. 36. Unammous Consent to Increase or Reduce Capital Stock. See § 63, Stock Corporation Law. The undersigned stockholders of record of the Company, a stock corporation organized under the laws of the State of New York, owning the entire capital stock of said corpora- tion issued and outstanding, hereby consent that the capital stock* of the said company be [inoreased or reduced} from dollars, consisting of shares,* of the par value of dollars each, to the amount of dollars, to consist of shares, of the same par value [or, without nominal or par value.} Dated, , 19 . Names of Stockholders, Number of Shares. [Attach affidavit of custodian of stock book. Bee Form No. 25.] As the consent must be RIed in the offices of the secretary of state and the clerk of the county in which the principal place of business of the corporation is located, and as a copy of the CDnaent must be entered upon the minutes of the corporation (see § 64, Stoclc Corfflration Law), it seems desirable to execute the consent in trip- licate. The consent needs no meeting to effectuate it but should be acknowledged by each stockholder, although | 63 of the Stock Corporation Law does not so require. * Common or preferred. t See § 65, Stock Corporation Law, which relates to the method of changing the par value of shares. FORMS 511 FORM No. 37. Certificate of Consent or Vote to Increase or Reduce Capital Stock. See § 64, Stock Corporation Law. We, , Chairman, and , Secretary, of a special meeting of the stockholders of the Company, a stock cor- poration organized under the laws of the State of N"ew York, called for the purpose of [increasing or rediicmg'i the amount of its capital stock,* hereby make, sign, verify and acknowledge the follow- ing certificate of the proceedings had at such meeting: That said company, desiring to [increase or reduce'^ the amount of its capital stock,* the president [or vice-president] and the secre- tary caused a notice signed by them to be published in , a newspaper printed in the county of , in which county t the principal business office of said company is located, once a week for at least two successive weeks prior to the date of the meeting called thereby, which said notice was as follows: [See Form 35.] That at least two weeks previous to said meeting, a copy of said notice, enclosed in a post-paid envelope, was duly mailed to each stockholder of record at his last known post-office address, as ap- pears by the affidavit of , hereto attached, [or at least five days before said meeting copies of said notice were personally served upon the following-named stockholders, as appears hy the affidavit of hereto attached} : [In lieu of service of notice of meeting hy mail or personal ser- vice, the following may he used'\ : That said meeting of stock- holders was held without notice to them and without the lapse of the period of time prescribed by law, all the requirements of law and of the by-laws respecting notice and publication of notice of the time and place of said meeting having been waived in writing by every stockholder of the company, a copy of which waiver is hereto at- tached. [For form of waiver of notice of meeting see Form No. 13.] That at the time and the place specified in said notices stock- holders appeared, in person and by proxy in numbers representing at least a majority of all the shares of said company, and that said stockholders organized by choosing from their number the under- signed, , as chairman, and the undersigned, , as Secretary thereof. * Or stated capital, in the case of shares without nominal or par value. t "If any [newspaper] is published therein." Section 63, Stock Corporation Law. 512 FOKMS That the notice for said meeting having been read, and proof of the proper publishing and mailing {or publishing and serving, or publishing, mailing and serving, or the aforesaid waiver of notice and publication^ thereof having been presented and ordered on file, the following resolution was adopted, "RjiSOLVBD, that the Company.does hereby [increase or reduce'] the amount of its* capital stock from dollars, consisting of shares* of the par value of dollars each, to the amount of dollars, to consist of shares* of the same par value. That the vote of the stockholders present, in person and by proxy, upon said resolution was duly canvassed, and shares of the capital stock of said Company, being at least a majority of all the stock thereof, were voted in favor of said resolution, and shares were voted in the negative. That there is annexed hereto a copy of the proceedings of the special meeting of the stockholders hereinbefore mentioned, made, signed, verified and acknowledged by the president and by the sec- retary of the corporation. [Or in case the unanimous consent is relied upon instead of a vote at the meeting, state: "That all of the stockholders have by unani- mous consent in writing consented to the (increase or reduction) of the capital stock from $ consisting of shares of the par value of $ each to the amount of $ to consist of shares of the same par value, which consent is hereto annexed. (See Form No. 36.)] And we do further certify: That the amount of capital of said Company heretofore authorized is dollars, of which dollars thereof was act- ually issued.** That the amount of the [increased or reduced] capital stock is dollars. That all of the aforesaid amendments and resolutions have been duly authorized by a vote of a majority of the board of directors of the corporation. [That the whole amount of the ascertained debts and liabilities of the said Company is dollars.^] * Common or preferred. ** See § 55, Stock Corporation Law. t This statement is necessary only in the case of a reduction of the capital stock, when the following approval must be endorsed by the State Comptroller on the certificate: "The reduced capital is suf- ficient for the proper purposes of the within corporation, and is in excess of its ascertained debts and liabilities." In practice, the State Comptroller gives such approval in duplicate on blanks pro- vided by his office. FORMS 513 In witness whekeof we have signed this certificate, in duplicate, this day of , 19 . Chairman. Secretary. State op New York, County of , **■•' and , being duly and severally sworn, say: That we are the Chairman and Secretary, respectively, of the meeting described in the foregoing certificate ; that we have read the foregoing certificate subscribed by us and that the same is true of our own knowledge. Sworn to before me this day of , 19 . State of New York, County of , **■• On this day of , 19 , before me personally came and , to me known, and known to me to be the individuals described in and who executed the foregoing certificate, and they severally acknowledged to me that they exe- cuted the same. Notb.^ — ^Duplicate originals of the foregoing certificate must be filed in the office of the clerk of the county in which the principal place of business of the corporation is located and in the office of the secretary of state. See § 64, Stock Corporation Law. FORM No. 38. Certificate of Increase or Reduction of Stated Capital of a Corpora- tion Having Stock Without Nominal or Par Value. See § 22, Stock Corporation Law. We, the undersigned, , president of the Com- pany, a domestic corporation, and , secretary of the Company, and also respectively chairman and secretary of a special meeting of stockholders of the Company, held on the clay of , 19 , at for the purpose of [increasing ■ or reducing'] the number of shares that may be issued by the corporation and its stated capital with which it will carry on business, do hereby make, sign, verify and 33 514 PORMS acknowledge the following certificate of amendment under the seal of the corporation, pursuant to statute in such case made and pro- vided : That said Company, desiring to [increase or reduce'] the amount of its capital stock, the president [or vice-president] and the secre- tary caused a notice signed by them to be pu'blished in , a newspaper printed in the county of j * in which county the principal business office of said Company is located, once a week for at least two successive weeks prior to the date of the meeting called thereby, which said notice was as follows: [See Form 35.] That at least' two weeks previous to said meeting, a copy of said notice, enclosed in a post-paid envelope, was duly mailed to each stockholder of record at his last known post-office address, as ap- pears by the affidavit of , hereto attached, [or at least five days iefore said meeting copies of said notice were personally served upon the following-named stocTcliolders, as appears iy the affidavit of hereto attached}. lln lieu of service of notice of meeting by mail or persdnal ser- vice, the following may he used:] That said meeting of stockholders was held without notice to them and without the lapse of the period of time prescribed by law, all the requirements of law and of the by-laws respecting notice and publication of notice of the time and place of said meeting having been waived in writing by every stock- holder of the company, a copy of which waiver is hereto attached. [For form of waiver of notice of meeting see Form No. 13.] That at the time and place specified stockholders appeared in person and by proxy in numbers representing at least a majority of all the shares of said Company, and that said stockholders organized by choosing from their number the undersigned, , as chairman, and the undersigned, , as secretary thereof. That the notice for said meeting having been read, and proof of the proper publishing and mailing [or publishing and serving, or publishing, mailing and serving, or the aforesaid waiver of notice and publication] thereof having been presented and ordered on file, the following resolution was adopted: RESOLVED, that the number of shares of stock that may be issued by this corporation be [increased or reduced} from shares, consistiijg of shares of preferred stock of the par value of $ each and shares of stock with- out nominal or par value, to shares, which shall con- sist of shares of preferred stock of the par value of $ each and shares of stock without nominal or par value. * " If any [newspaper] is published therein. ' ' Section 63, Stock Corporation Law. roEMS 515 RESOLVED FUBTHEE, that the stated capital with which this corporation will carry on business shall not be less than the aggre- gate amount of the preference to which all issued and outstanding stock having a preference as to principal is entitled, and in addi- tion thereto, the amount of $5 for every share of stock issued and outstanding other than stock having a preference as to principal, and such additional amount as from time to time may by resolution of the board of directors of the corporation be transferred thereto. That stockholders owning at least a majority of the shares of stock of the corporation issued and outstanding voted in favor of such resolutions. That all of the aforesaid amendments and resolutions have been duly authorized by a vote of a majority of the board of directors of the corporation. That there is annexed hereto a copy of the proceedings of the special meeting of the stockholders hereinbefore mentioned, made, signed, verified and acknowledged by the president and by the sec- retary of the corporation. That the amount of the [increased or reduced] stated capital is $ '. {That the whole amount of the ascertained deits and liahilities of the said Company is $ .*] In witness whekeop we have made, signed, verified and acknowl- edged this certificate in duplicate this day of , 19 . [COEPOKATE SEAL] President and Chairman. Secretary. State op New Yokk, County of New York, **■• and , being duly and severally sworn, say: That we are respectively the president and secretary of the Company, and also respectively the chairman and sec- retary of the meeting described in the foregoing certificate; that we * This statement is necessary only in the case of a reduction of the capital stock, when the following approval must be endorsed by the State Comptroller on the certificate: "The reduced capital is suf- ficient for the proper purposes of the within corporation, and is in excess of its ascertained debts and liabilities." In practice, the State Comptroller gives such approval in duplicate on blanks pro- vided by his office. 516 FORMS liavo read the foregoing certificate subscribed by us and that the same is true of our own knowledge. Sworn to before me this day of , 19 . President and Chairman. Secretary. State of New York, County of New York, On this day of , 19 , before me personally came and , to me known, and known to me to be the individuals described in and who executed the foregoing certificate and they severally acknowledged to me that they executed the same. Note. — Duplicate originals of the foregoing certificate must be filed in the office of the Clerk of the county in which the principal place of business of the corporation is located and in the office of the Secretary of State. See § 22, Stock Corporation Law. FORM No. 30. Affidavit tor Approval of State Comptroller on Reduction of Capital Stock. See § 64, Stock Corporation Law. State op New York, County of ^ s.. being duly sworn, says: I am the of the Company, a stock corporation, other than a railroad or a moneyed corporation, organized under the laws of the State of New York; that, a capital of dollars* is sufficient for the proper purposes of said Company and is in excess of its ascer- tained debts and Jiabilities. Sworn to before me this day of , 19 . * The amount of the reduced capital. FORMS 517 FORM No. 40. Inciease or Reduction of Par Value of Shares. See § 65, Stock CJorporation Law. For forms of notice of meeting, consent of stockholders and cer- tificate of consent or vote to increase or reduce the number of shares of the capital stock, see Forms Nos. 35, 36 and 37^ which may be readily adapted. "The number of shares into which the capital stock of any stock corporation is divided may be increased or reduced by a two-thirds vote of all stock duly represented at a meeting held and conducted in like manner, and upon filing a like certificate,* as required for the increase or reduction of its capital stock. " § 65, Stock Corporation Law. FORM No. 41. Corporation Acknowledgment. State op New York, County of ^ ss.. On the day of , in the year , before me personally came , to me known, who, being by me duly sworn, did depose and say that he resided in ; that he is the Ipresident or other officer'} of the [name of corpora- tion], the corporation described in and which executed the above instrument; that he knew the seal of said corporation;! that the seal affixed to said instrument was such corporate seal; that it wes so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. [Signature and title of official talcing acknowledgement.'] [SEAL.] * Should be "certificates." See § 64, Stock Corporation Law. t See note to § 11, General Corporation Law. GENERAL INDEX [519] GEiNERAL INDEX [Eeferenees are to pages.] ACKNOWLEDGMENT, corporate form, 517. of certificate of incorporation, 2, 38. ACTIONS by and against corporations, 82, 83, 90, 93. by and against unincorporated associations, 236-238. against officers, etc., for misconduct, 79, 80, 81. evidence in, 39, 146. attempt to commence, 318, 319. complaint, 353. how begun against domestic corporations, 318, 319, 320-323. how begun against foreign corporations, 320, 321, 322, 323. not affected by consolidation, 15. not affected by amended certificate of incorporation, 38. dissolution, 83, 93. sequestration, 82. not affected by change of name, 74. against stockholders, 86, 87, 214, 215, 216, 228. limitation of, 216, 318. by attorney-general, 80, 8C, 90, 93, 327, 339-342, 397. witnesses ' privileges, 366. to annul corporation, 90. to compel determination of a claim to real property, 437. for non-payment of corporation note, 323. preferred causes, 152, 320. by judgment-creditor, 338, 339. misnomer, '353. cognizable by justice of the peace, 349. stay by stockholders, 58. See Complaint; Directoes; Dissolution; Evidence; Fokeign CoKPOKATiONS ; Merger; Ofpicers; Pleadings; Stockholdeks. AGENT of unauthorized foreign corporation, 369. ADMINISTEATOE, etc., holding stock, not personally liable, 215. when liable, 215. ADVANCES. ;See Interest. AGREEMENT. See Voting Trusts. ALTERATION or repeal by legislature, 153. of business, 184, 185. AMENDING CEBTiriCATE of incorporation, 35, 37, 38, 184, 185, 195, 196, 199. See Capital Stock; Change oi? Name; Change of Place op Business ; Change op Business ; Co-operativb Cokporations ; L521J 522 INDEX [Eeferences are to 'pages.'] AMENDING CERTIFICATE — Continued. CORPOKATE Existence; Directors; Purchase of Exchange OF Stock ; Shares of Stock ; Taxation. ANNUAL ELECTION of directors, 197, 198. at least one-fourth of directors to be elected annually, 197, 198. notice of meeting, 197, 198. ANNUAL MEETING of stockholders, 197. notice of, 197. publication of notice, 197. ANNUAL REPOET by domestic and foreign corporations, 207, 208. penalty for failure to make, 208. to specify stock issued for property purchased, 213, 214. by co-operative corporations, 25. See Reports. ARREST. See Officers ; Civil Practice Act Provisions. ASSETS, sale of, 182-184. See Statement. ASSIGNMENTS. See Transfers. ASSURANCE, as part of corporate name, prohibited, 37, 44, 369, 371-372. ATTACHMENT of property, 334-338. in justices' courts, 351, 352. ATTORNEY-GENERAL, action to annul corporation, 90. action to dissolve corporation, 83, 84. action to dissolve moneyed corporation, 93. action against officers, directors and stockholders, 86, 87. fraudulent practices in respect to stocks, bonds, and other securi- ties, 401-407. See Forfeiture. , BANK OR BANKING, as part of corporate name, prohibited, 37, 44, 369, 371, 372. BANKING POWERS, prohibited, 50, 51. BENEFIT, as part of corporate name, prohibited, 37, 44, 369, 371, 372. See Contributions. "BLUE SKY" LAWS, 401-407. BOARD OP DIRECTORS. See Directors. BOND. See Lost Certificate ; Officers. BONDING, as part of corporate name prohibited, 37, 44. BONDS of domestic corporation guaranteed by another, 175, 17,6. when convertible into stock, 171. validity of, 173-175. INDEX 523 [Beferences are to pages.} BONDS — Continued. officers may be required to give, 202. when issued, 170-172, 175. consideration of, 213, 214. foreclosure, 148, 176, 177. may be issued on reorganization, 178, 179, voting power of, 178. fraudulent issues of, criminal, 368, 369. See Fraudulent Pkactices; Moktgages. BOOKS, accounts to be kept, 204, 205. extracts from, 204, 205. names of stockholders to be exhibited, 204. stock book of foreign corporations to be exhibited, 206, 207. of domestic corporation as evidence, 204, 205. BOOKS — Continued. of foreign corporations as evidence, 324, 325. false entries, criminal, 371. inspection, 204, 205. penalty for refusing inspection, etc., 205, 371. forgery, 375, 376. See Stock Book; Subscriptions; Transfer Book. BOOKS OF ACCOUNTS to be kept, 204. how subpoenaed, 325, 326. BUSINESS to be described in certificate, 2. may be altered and extended, 184. corporation taxable at principal place of, 248. what kinds may be conducted, 2. practicing law prohibited, 356-358. restrictions upon commencing, 2, 7, 186-188. must be commenced within two years, 60. place of, how changed, 180, 181. capital on commencing, 2. BUSINESS COJBPOEATIONS LAW, 1-28. applicable to co-operative corporations, 21. corporations not allowable under, 1, 2. See Certificate op Incorporation. BY-LAWS, 197, 202. . power to make, 41. failure to adopt, 200. of directors, respecting election to be published, 41. stockholders may make, 57. when directors may make, 41, 59. inspectors of election, 203. 524 INDEX ['References are to pages.] BY-LAWS — Continued. to prescribe duties of officers, 202. meetings, 3, 41. special meetings, 64. , may fix amount of stock necessary for quorum, 41. directors' meetings, place of, 3. CANCELLATION of forfeited stock, 212, 213. See Capital Stock. CAPITAL, amount of, required to commence business, 2, 7. return of, to stockholders after reduction, 222. employed by foreign corporation in state subject to taxation, 261, 262. not to be applied to purchase of stock, 370. See Capital Stock. CAPITAL STOCK, amount of, 2, 190. classification of, 2, 217, 218. ten per cent, to be paid on cash subscriptions, 212. one-half to be paid within one year, 8. certificate of such payment to be filed, 8. stock without nominal or par value, 185-187. issued for money, labor or property, 213, 214. payment of, 88, 212, 213. when may be issued for stock of other corporations, 211, 212. dividends not to be paid out of, 201. how increased or reduced, 189, 190, 218-223. notice of meeting to increase or reduce, 220. increased or reduced by unanimous written consent of stockhold- ers, or by majority vote at meeting, 220-223. certificate of consent, or vote, to increase or reduce, verified by chairman and secretary of meeting, and filed, 189, 190, 221, 222. limitation on amount of, on reorganization, 178, 179. number of shares increased or reduced by two-thii'ds vote, 223. unlawful diversion of, 201, 370, 371. unlawful increase of, 370. when to be rg^uced by stock forfeited for non-payment, 212, 213. annual report to state amount of, etc., 207, 208. See Capital; Dissolution; Dividends; Pkeperred Stock; Sub- scriptions; Taxation. CASUALTY, as part of corporate name prohibited, 37. CERTIFICATE of payment of one-half of capital stock, 8. of consent or vote of stockholders to increase or reduce capital stock to be made and filed, 189, 190, 221, 222. INDEX 525 [Beferences are to pages.} CEETIFICATE — Continued. of consent or vote of stockholders to authorize mortgage to be made and filed, 170-172. such certificate when recorded to be eonclusi-ye evidence of truth of consent to execution of mortgage, 174, 175. of vote to increase or reduce number of shares, 223. of change of name, 68, 72. of consent or vote of stockholders to extend corporate existence, 60, 61. of inspectors of election, 203. of foreign corporation to do business in State, 44. of surrender of authority to do business in State, 46-48. of dissolution by incorporators, 115. on issuance of common and preferred stock, 217, 218. on reorganization, 176, 177, 185. of Secretary of State on change of name, 68. false, action for, 208, 209. false, criminal, 375. inspectors to make and file certificate of election, 203. See Co-operative Corporations; Corporate Existence; Stock Certificate. CEETIFICATE OF INCOBPOEATION, 2-6, 7, % 9, 20. definition, 32. certified copy, 32, 86, 38, 39. as evidence, 39. subscribers to, 2, 35. to be filed and recorded, 2, 35. may contain special provisions, 3, 40, 53, 61, 197, 200, 211, 217. may provide for preferred stock, 217. may provide for cumulative voting, 53. may provide for partly paid stock, 217. may provide for stock without nominal or par value, 185. fees for filing and recording, 443, 444, 446, 447, 448. amended, 37, 38, 191. tax upon amendment of, 195, 196. acknowledged, 2. certified copy or original to be filed in county clerk 's ofBee, 35, 36. lost or destroyed, how replaced, 38. directors need not be stockholders unless otherwise provided, 197. forfeiture for non-user, 60. alteration and repeal, 153. See Alteration; Amending Certificate; Charter; Co-opera- tive Corporations. 526 INDEX [Beferences are to pages.] CEETIFICATE OF STOCK. See Stock; Stock Ceetipicate. CERTIORARI, to review determination of tax commission, 289. CHAIRMAN of meeting. See Capital Stock. CHALLENGE of stockholder or proxy, 52, 55, 56. CHANGE of purposes, 184. of name, 68-75. of number of directors, 199, 200. of number of shares, 223. of place of business, 180, 181. of par value, 223. See Increase op Capital Stock; Reduction of Capital Stock. CHARTER, alteration and repeal of, 153. forfeiture for non-user, 60. forfeiture for nuisance, 111-113. reinstatement, 113, 114. CHATTEL MORTGAGES, 413-417. CIVIL PRACTICE ACT PROVISIONS, 318-343. CLASSIFICATION of corporations, 31. of directors, 200. ■of stock, 2, 217, 218. CODE OF CRIMINAL PROCEDURE, 386-389. COMBINATIONS prohibited, 181, 396. procedure against, 397-400. COMMENCING BUSINESS, restrictions upon, 7, 187, 188. capital on, 2. COMMON STOCK, 217, 218. when preferred stock exchanged for, 217, 218. on reorganization, 176, 177. COMPETITION, unlawful, prohibited, 181, 396. COMPLAINT, allegation of corporate existence in justice court, 353. COMPTROLLER, approval of, on reduction of capital stock, 190, 221, 222. fees, 445. certain duties transferred to state tax commission, 257, 258. rulings of, governing transfer tax on stock, 312-318. CONDEMNATiqjsr, 19. CONFLICTING LAWS, construction of, 153. CONSENT OF STOCKHOLDERS to mortgage, 170, 171. not necessary for purchase-money mortgage, 170, 171. to be ffled and recorded, 171. vote at meeting in place of, 170, 171. to increase or reduce capital stock, 220. to change principal place of business, 180. INDEX .527 [Beferences are to pages.] CONSENT OF STOCKHOLDEBS — Continued. to increase or reduce number of directors, 199. to dissolution before beginning business, 115. to dissolution before expiration of charter, 116-118. to sale of franchise and property, 182, 183. to extend corporate existence, 60-63. See Certificate; Mortgage. CONSIDERATION for stock and bonds, 213, 214. CONSOLIDATION, when business corporations may consolidate, 10. proceedings to effect, 10-13. powers of consolidated companies, 18. property transferred on, 14. rights of creditors upon, 15. tax and fees to be paid on, 260, 444, 450. evidence of, 39, 40. dissenting stockholders, 11-13. See Fees; Mekgek; Sale op Franchise. CONTRIBUTIONS to benefit or insurance fund, 394. See Political Contributions. CONVERSION of bonds into stock, 171. increase of capital stock on, 171, 172. CONVEYANCE of property to oflScers, etc., when corporation in- solvent, etc., 224. CO-OPERATIVE CORPORATIONS, 20-27. number of directors, 21. purchase of business by, 23. earnings; dividends, 24. written vote of stockholders, 22, 23. name, 26. "co-operate," "co-operative," use of, 26. violation, 26, 27. CORPORATE EXISTENCE, duration of, 2, 5, 41. extension of, 60, 61, 62. revival of, 62. CORPORATIONS, political contributions forbidden, 65. full liability, 9. definitions, 31-33. classification of, 31. moneyed, 32, 201, 202. practicing law, prohibited, 6, 356. COSTS, security for, generally, 343. security for, in justices' courts, 355. COUNTY CLERK, filing paper with, 35. fees, 445-447, 448-452. 528 INDEX [Beferences are to pages.] CBEDITOES, liabilities of stockholders to, 214, 216, 228. directors' liabilities to, 201, 208, 209, 228. officers liable for making false certificate or report, 208, 209, 228. property transferred in fraud of, 224. ^ executors, etc., not liable to, 215. laborers, servants, etc., stockholders liable to, 215. restrictions on liability to, 215, 216. right of, on consolidation, 15. CRIMES, 356-385. CUMULATIVE VOTING, 53. DEBTS, annual report to state amount of, 207, 208. restrictions upon incurring, 7, 187, 188. See Stockholdeks. DECREASE OF CAPITAL STOCK. See KEaDUCTiON op Capital Stock. DEED OF TRUST. ,See Mortgage. DEFINITIONS, 31, 32, 33, 243-245. domestic corporation, 318. foreign corporation, 318. DIRECTORS, definition, 32. number, 2, 5. qualifications, 5, 59, 197. one must be a citizen of United States and resident of State, 59. how named for first year, 2, 5. how chosen thereafter, 197. holding over, acts void, 200. notice of election for directors, 197. one-fourth of directors to be elected annually, 198. vacancies, how filled, 197. effect of neglect to elect, 56. special election of, 56. number, how increased or reduced, 199, 200. may open subscription books, 212. to call in subscriptions, 212. majority of, to sign, acknowledge^ and file certificate of payment of one-half ^ capital stock, 8. _ liable for payment unauthorized dividends, 201. liable for making false reports, certificate, etc., 208, 209. liable to creditors, 201, 208, 209, 228. to appoint oflicers, 202. liable for loans to stockholders, 201, 202. stock book and books of accounts to be presumptive evidence against, 204, 205. : ' INDEX , 529 [Beferences are to pages.l DIEECTORS — Continued. meetings, where held, 3. by-laws, 59. as to acts of, 64. dissent from acts of, 372, 373. quorum, 59. powers of, on dissolution, 60. eligible as receivers on voluntary dissolution, 110. collusive actions, 58, 59. unlawfully holding over, 200. actions against, for misconduct, 79-81. liability for unlawful transfers by or to, 223, 224. penal provisions respecting, 368-380. pen^l law definition, 372. prohibited transfers of property by or to, 223, 224. of moneyed corporations not eligible as inspectors of election, 203. must be stockholders unless otherwise provided, 197. policyholders eligible as, 198. See Co-operative Corporations; Elections; Foreign Corpora- tions; Voluntary Dissolution. DISSOLUTION for non-payment of one-half of capital stock, 8. for non-user within two years, 60. not caused by failure to elect directors, 56. directors as trustees on, 60. dividends upon, 201. action for, 83. by whom action brought, 83. temporary injunction may be granted therein, 84. receiver may be appointed in such action, duties, etc., 84, 85. officers, directors and stockholders may be joined as defend- ants, 86, 87. separate action may be brought against officers, etc., 87. proceedings in either of two last-named actions, 87. property distributed on final judgment in said actions, 87. stock subscriptions may be recovered, 88. liabilities of stockholders, officers and directors, 88. effect of provisions relating to foregoing, 88. of co-operative corporation, 25. See Voluntary Dissolution. DISTRICT STEAM COEPOEATIONS, 15-18. DIVIDENDS payable only from surplus profits, 201. capital not to be impaired by payment of, 201. 530 INDEX [Beferences are to pages.'] DIVIDENDS — Continued. state taxation based on, 262-266. penal law, 370. See CO-OPEEATIVE COKPOKATIONg. DOCUMENTARY EVIDENCE. See Books; E\'idence. DOMESTIC CORPORATIONS. See Guakanty; Sale. ELECTION, political, 374. ELECTIONS, annual, to be had, 197. notice of, for directors, 197. life insurance corporations, 197, 198. one-fourth of directors to be elected each year, 198. inspectors' duties at, 203. by-laws of directors, respecting election of directors or officers must be published, 41. of directors, effect of failure to hold, 56. mode of calling special election of directors, 56, 57. mode of conducting special election of directors, 57. who may vote at, 57, 58. inspectors' duties at special, 58. powers of Supreme Court respecting contested, 58. misconduct at, 3. EMPLOYEES, liability of stockholders to, 215. issue of stock to, 219, 220. weekly payment of wages, 393, 394. wages, preferred claims, 138, 393. loans of money on salaries of, 419-421. to be paid wages in accordance with labor law, 382. to be paid in cash, 393. wages, how reached by execution, 328-330. corruptly influencing, 362. coercion by employers, 365. false statements in regard to employment, 379. attending election, interference with, 374. EVIDENCE, certificate of incorporation as, 45, 46. other papers a^ 45, 46. stock-book, 51, 52. books of foreign corporations, 324, 325. copies of books as, 324, 325. designation of agent as, 325. of corporate existence in justice court, 353, 354. See Cebtificate; Consolidation; Subpoena Duces Tecum; Record; Civil Practice Act Provisions. INDEX 531 [Eeferences are to pages.] EXCHAKGE of preferred for common stock, 217, 218. or purchase of stock of other corporations, 211, 212. EXECUTIVE LAW, 438. EXECUTOR, etc., holding stock, not personally liable, 215. when liable, 215. EXISTENCE, proceedings to extend corporate, 60-63. See Certificate. EXTENSION of business, 184, 185. FACTORS ACT, 421-423. EEES, secretary of state, 373, 377-379, 443-445. county clerk, 445-447. comptroller, 445. FELONY, punishment for, 385. FINANCIAL STATEMENT. See Statement. FIRST MEETING. See Organization. FOREIGN CORPORATION, stock book to be kept, 206, 207. inspection of stock book, 206, 207. to obtain certificate to do business, 44. proof to be filed by, 45. surrender of authority to do business in State, 46-48. may sue, when, 66. cannot sue unless certificate is obtained and license tax paid, 44, 262. cannot sue, when, 66. may be sued, when, 66. license tax, 261. franchise tax, 262-265. stock transfer tax, 299-311. local taxation, 243-248. liability of directors, oflScers and stockholders of, 228. annual reports, 207. name not to resemble that of domestic corporation, 44. certain words not to form part of corporate name, 44. of adjoining states may purchase property of certain domestic corporations, 182, 183. real estate, may hold, 50. summons, service of, 320-323. actions against, 66, 67. penal law provisions, 356-385. See Actions; Agent; Books; Costs; Evidence. FORFEITURE of stock for non-payment, 212, 213. of charter for non-user, 60. 532 INDEX [Beferences are to pages.'] FORFEITURE — Continued. for maintaining nuisance, 111, 112, 113. for non-payment of annual tax, 275. for non-payment of one-half of capital stock within one year, 8. FORGERY, signature of officer, 375, 376. books, etc., 375-377. punishment, 378. FORMATION. See Ceetipicatb of Incorporation. FORMS, 455-517. index to forms, xxxii. FRANCHISE, voluntary sale of propeity and, 182, 183. FRANCHISE TAX on domestic and foreign corporations, 188, 189, 262-265. on business corporations, 278-298. FRAUD in issue of stock for property, etc., 214. on organization, 367, 368. See Penal Law Provisions. FRAUDULENT PRACTICES, in respect to stocks, bonds and other securities, 401-407. FULL LIABILITY CORPORATIONS, 9. compare joint-stock associations, 231-239. GARNISHMENT, 328-330. in justice court, 353-355. GENERAL ASSOCIATIONS LAW, 231-239. GENERAL BUSINESS LAW, 396-414. GENERAL CONSTRUCTION LAW, 439. GENERAL CORPORATION LAW, 29-168. applicable to co-operative corporations, 21. GUARANTEE or guaranty, as part of corporate name, prohibited, 37, 44, 369, 372. of bonds of domestic corporation, 175. GUARDIAN holding stock, when personally liable, 215, when not liable, 215. INCOME TAX. See Franchise Tax. INCORPORATORS, three or more persons may bo, 2. qualifications of, 35. frauds by, 367, 368. dissolution by, 115. INCORPORATION. See Certificate of Incorporation. INCREASE OF CAPITAL STOCK, method, 189, 190, 218-222. notice of meeting, 220. conduct of meeting, 221-223. INDEX 533 [References are to pages.'] INCREASE OF CAPITAL STOCK — Continued, on conversion of bonds into stock, 171. misconduct of officers or directors on, 371. See Capital Stock; Certificate; Co-opeeation Cokporations ; Par Value. INDEMNITY, as part of corporate name, prohibited, 44, 369, 372. INJUNCTION. See Dissolution; Moneyed Corporation; Volum- TAEY Dissolution; Civil Practice Act Provisions. INSOLVENCY. See Transfers. INSPECTION OF BOOKS. See Books; Books of Accounts; Stock Book. INSPECTORS OF ELECTION, how appointed, 203, 204. directors and officers of moneyed corporations not eligible as, 203. stock books, etc., to be produced on demand of, 52. compensation, 203. oath, 203. violating oath, criminal, 373. certificate of election, 203, 204. stockholders and proxies to take oath, if required, 54, 55. at special elections, 57, 58. INSURANCE, as part of corporate name, prohibited, 44, 369, 372. See Contributions. INTEREST, rate of, 408. how calculated, 411. permitted on advances on collateral security, 411. recovery of excess,. 411, 412. See Usury. INVESTMENT, as part of corporate name, prohibited, 37, 44, 45, 372. JOINT-STOCK ASSOCIATIONS, 231-235. JUDGMENT CREDITOR'S ACTION, 338, 339. JUSTICE COURT ACT PROVISIONS, 349-355. summons, 349-350. attachment, 351, 352. actions by and against corporations, 352. See Costs. LABOR, stock may be issued for, 213. LABOR LAW PROVISIONS, 390-394. violations of,^ 382, 383. LABORERS, servants or employees, liability of stockholders to, 215. See Employees. 534 INDEX [Beferences are to pages.] LAWS, conflicting, 153. repealed, 28, 154, 229, 239. construction of repealing laws, 154. LICENSE TAX payable by foreign corporations,^ 261, 262. LIEN LAW, 415-417. LIMITATION. See Actions. LOAN, as part of corporate name, prohibited, 37, 44, 45, 369, 872. LOANS to stockholders prohibited, 201, 202. LOST CERTIFICATE of stock, how replaced, 225, 226. of incorporation, how replaced, 38. MEETINGS OF DIRECTORS. See Diebctoks. MEETINGS OF STOCKHOLDERS, how called, 41, 64, 197. how called upon failure of directors to call, 56, 57. to increase or reduce stock, 220-222. consolidation, 10-13. to change name, 73. to change number of directors, 199, 200. alteration and extension of business, 184. to change place of business, 180, 181. to change par value of shares, 223. dissolution, 116-118. to guarantee bonds of other corporations, 175, 176. to authorize prefered stock, 217, 218. to extend corporate existence, 60, 61. to mortgage corporate property, 170-173. reorganization, 7. quorum, 41, 57. See Waiver. MEMBERS, definition, 32. MERGER, upon purchase of stock of one corporation by another, 182. no effect on rights, etc., 182. of bridge and railroad corporation, 182. See Consolidation; Sale. MISCELLANEOUS PROVISIONS, 395-439. MONEYED CORPORATIONS, definition, 32. directors and ofccers ineligible as inspectors of election, 203. dissolution, receivers, etc., 93-101. MONOPOLY, contracts for, illegal and void, 396, 397. action against, 397-400. MORTGAGE, corporations may make, 170-173. need not be filed as chattel mortgage, when, 415. where filed, 415, 416. INDEX 535 [Seferences are to pages.] MORTGAGE — Continued. rights of bondholders on reorganization, 178. reorganization upon sale under mortgage or deed of trust, 176- 178. consent or vote of stockholders to authorize, 170, 171. certificate of consent or vote to be filed, 170, 171. consent or vote not necessary for purchase-money mortgage, 170, 171. See Eecord. MUNICIPAL COUET CODE PROVISIONS, 345. NAME, must not resemble that of domestic or foreign corporation, 36, 44. must indicate a corporation, as distinguished from a natural person, firm or copartnership, 37. change of, 68-74. "trust," "bank," "banking," "insurance," "assurance," "indemnity," "guarantee," "guaranty," "title," "sav- ings," "investment," "loan," "benefit," as part of name, prohibited, when, 36, 37, 44, 45, 369, 372. assumed trade name, 362-364. See Co-OPEKATivE CoKPORATioNS ; Consolidation; Sale. NEGOTIABLE INSTRUMENTS LAW, 418. NEW YORK CITY COURT ACT PROVISIONS, 344. NON-USER, forfeiture of charter for, 60. NOTICE of election of directors, 197. NUMBER of directors, 2, 5. of directors, how increased or reduced, 199, 200. of subscribers, 2. of shares, how changed, 223. OATH of inspectors of election to be filed, 203. of stockholders and proxies, when required, 55. OFFICE. See Pkincipal Office. OFFICERS to be appointed by directors, 202. eligible as receivers on voluntary dissolution, 110. of moneyed corporations not eligible as inspectors of election, 203. certain officers need not be directors or stockholders, 202. to make and file annual reports, 208, 209. bonds may be required to be given by, 202. liability for money loaned to stockholders, 201, 202. liability for making false reports, certificates, etc., 208, 209, 375- 377. 536 INDEX ['References are to pages.'\ OFFICERS — Continued. misconduct on vote to increase capital stock, 370. action against, for misconduct, 79, -80. penal proYisious, 356-385. transfer of property to, prohibited, 223, 224. by-laws to prescribe duties of, 202. removal of, 79, 80, 202. arrest of, 381-333. See Co-operative Corporations ; Foreign Corporation ; Volun- tary Dissolution. OEGANIZATION must be effected within two years, 60. See Certificate op Incorporation; Fees; Fraud; Tax. ORGANIZATION TAX, 188, 189, 260, 261. none required on reincorporation, 8. See Tax. PAR VALUE of shares, 2. change of, 223. stock without nominal or par value, 185-196. See Shares op Stock. PARTLY PAID STOCK, how provided for, 217. PAYMENT OF CAPITAL STOCK, when to be made, 212, 213. cash subscriptions, 212, 213. See CERTincATE ; Subscriptions. PENAL LAW PROVISIONS, 356-385. PERSONAL PROPERTY LAW, 419-435. PLACE OF BUSINESS, 2, 5. change of, 180, 181. PLEADINGS in justice court, 351, 352. veriiication in justice court, 352. PLEDGEE of stock not personally liable, 215. PLEDGOR of stock may vote thereon, 52. POLITICAL CONTRIBUTIONS, forbidden, 65. See Joint-Stock Associations. POOLING AGREEMENTS. See Voting Trusts. POWERS OF CORPORATIONS, general, 40, 41. to acquire and dispose of property in other states and countries, 43. banking powers prohibited, 50, 51. of district steam corporations, 15-17. alteration and extension of business, 184, 185. to extend existence, 60, 61. to hold stock in other corporations, 211, 212. INDEX 537 [References are to pages.} POWERS OF COEPOEATIONS — Continued, to hold own stock, HOI. to consolidate, 10-13. to amend certificates, 37, 38. to borrow money and mortgage property, 170, 171. to increase or reduce stock, 218, 219. to authorize preferred stock, 217, 218. to issue partly paid stock, 217. to exchange preferred for common stock, 217, 218. to guarantee bonds of other domestic corporations, 175, 176. to sell franchises and property, 182-184. to act as administrator, 347. to condemn land, 19. practicing law, prohibited, 6, 7, 356. limitations on, 6, 7, 40, 41, 50, 51. amending charter, 37, 38. See Foreign Cokpokations. PEEFERENCES. See Teanspees. PEEFEEEED CLAIMS, laborers' wages, 393. PEEFEEEED CAUSES, 320. PEEFEEEED STOCK, how provided for, 2, 4, 217, 218. issued on consent of two-thirds of stockholders, 217, 218. exchangeable for common, 217, 218. right to vote, 51, 52. PEESIDENT to be appointed from directors, 202. powers of, how controlled, 202. or vice-president, etc., to sign stock and other certificates, etc., 8, 60, 61, 171, 210. or vice-president, etc., to make and file annual report on de- mand, 207, 208. or vice-president to verify certificate of payment of one-half of capital stock, 8. See DiEECTOES. PEINCIPAL OFFICE, 2, 32. of foreign corporation, 45. PEOPEETY, stock may be issued for, 213, 214. voluntary sale of, 182-184, when may be held in other states, 43. See Real Estate. PE0SPECTU8, signed without authority, misdemeanor, 367. PROXY, stockholders may give, 54, 55. to be in writing, 55. duration, 55. 538 INDEX IBeferenees are to pages.'] PROXY — Continued. oath to be taken if required, 55. filed in office of corporation, 56. penal law, 373. See Inspectors of Election. PUBLICATION of certain directors' by-laws, 41. of notice of annual meeting, 197. summons, 322, 823. PURCHASE or exchange of stock of other corporations, 211, 212. of business by co-operative corporation, 28. QUORUM, directors, 59. at stockholders' meetings, 41, 57. REAL ESTATE, corporations may acquire, 41, 42, 43. when may be held in other states, 43. when foreign corporations may hold, 50. may be condemned in certain cases, 19. See Mortgage. REAL PROPERTY LAW, 436. RECEIVERS, officers, directors and stockholders eligible as, 110. See Dissolution; Moneyed Corporation; Voluntary Dissolu- tion. RECORD of mortgage as presumptive evidence, 173, 174. of mortgage as conclusive evidence, 174. of stock transfers to be kept, 307. RECORDING FEES, 443, 444. See Certificate of Incorporation. REDUCING number of directors, 199, 200. REDUCTION OF CAPITAL STOCK, method of, 189, 190, 218, 219. See Certificate; Comptroller; Increase of Capital Stock. REGISTRATION. See Stock Transfer Stamps, REINCORPORATION, 7. organization tax not required, 8. See Incorporators. REINSTATEMENT. See Forfeiture. REMOVAL of offers, etc., 79, 80, 203. Ri^iORGANIZATTON of existing corporations, 7, 191-194. existing rights and liabilities not affected, 8, 195. upon sale of property and franchises, 176, 177. rights of bondholders, 177-179. See Capital Stock; Certificate; Consent op Stockholders; Tax. INDEX 539 IBeferences are to pages.'] REPORTS, certificates, etc., action for making false, 208, 209. false, criminal, 371, 375. See Annual Report; Taxation. REVIVAL OF CORPORATE EXISTENCE, 60-63. SALE of property and franchises, 176, 177, 182-184. SAVINGS as part of corporate name, prohibited, 37, 45, 369, 372. SEAL, corporation to have, 40, 41. on stock certificates, 210. corporation without seal, 41, note. SECRETARY or treasurer must sign stock certificates, 210. or treasurer to verify certificate of payment of one-half of capi- tal stock, 8. or other oflicers to make and file annual report on demand, 207, 208. See Capital Stock; Certificate. SECRETARY OE STATE, fees, 443, 444, 448-452. SERVANTS, liability of stockholders to, 215. to be paid weekly, 393. SERVICE. See Summons. SEQUESTRATION, action by judgment creditor for, 82. SHARES OF STOCK, per value, 2. without nominal or par value, 185-19(5. change of par value, 223. may be forfeited, 212, 213. how transferred, 210, 428-435. may be increased or reduced in number, 223. See Stock; Uniform Stock Transfer Act. SPECIAL ELECTIONS. See Elections. SPECIAL MEETINGS, how called, 64. for election of directors, 56. SPECIAL PROCEEDINGS. See Summons; Supplementary Proceedings. STAMPS. See Stock Transfer Stamps. STATE COMPTROLLER. See Comptroller. STATEMENT of affairs demandable by certain stockholders, 227. penal law, 371. STAY of proceedings in collusive actions, 58, 59. STEAM CORPORATIONS, provisions respecting, 15-18. STOCK, directors to be stockholders unless otherwise provided, 197. when bonds exchangeable for, 171, 172. increase of, when bonds exchangeable for, 171. certificate of, under corporate seal, 210. 540 INDEX \Beferences are to pages.'] STOCK — Continued. signed by certain officers, 210. issue of to employees, 219-220. without nominal or par value, 185-196. , tax on transfers of, 299-311. transfer of, by stockholder indebted to corporation, 211. of other corporations, when may be held, 211, 212. preferred and common, 217, 218. fraudulent issue of, 368, 369, 377, 378, 401-407. false statements and rumors regarding, 378. forfeiture of, for non-payment, 212, 213. partly paid, 217. See Capital Stock; Co-opeeative Corpoeations ; Employees; Par Value; Stock Certificate; Stock Transfer Stamps; Stock and Bonds; Uniform Stock Transfer Act; Vote. STOCK AND BONDS, consideration for, 213, 214. may be issued on reorganization, 178, 179. See Fraudulent Practices. STOCK BOOK to be kept by domestic stock corporation, 204. to be kept by foreign corporation, 204-207. to be open for inspection, 52, 204-207. extracts to be taken from, 204-207. penalty for refusing to exhibit, 204-207, 371. as evidence of right to vote, 52. STOCK CERTIFICATE, 210. lost or destroyed, how replaced, 225. of partly paid stock, 217. See Penal Law Provisions. STOCK CORPOEATTON LAW, 169-230. applicable to co-operative corporations, 20. STOCKHOLDERS, vote for directors, 51, 52. liability to creditors, 214, 216, 228. money not to be loaned to, 201, 202. executors, etc., not personally liable, 215. as pledgees, 215. liable for debts due laborers, servants and employees, 215. meetings to elect directors, 56, 57, 197. liability limited, 215, 216. not to transfer stock, when, 211. to have access to list of stockholders, 204, 205. may require sworn statement of affairs, when, 227. transfers of property to, prohibited, 223, 224. names in stock book, 204, 205. INDEX 541 [Eeferences are to pages.1 STOCKHOLDERS — Continued. not to sell vote, 373. See Co-operative Corporations; Foreig'n Corporations; Meet- ings OF Stockholders; Proxy; Stock; Voluntary Dissolu- tion; Vote. STOCK TRANSFER STAMPS to be affixed, 188, 299. canceling, penalty, 304. illegal use, penalty, 305. sale of, 302, 303. tax imposed, rate, 188, 249. refund, where erroneously aflSxed, 311. transactions subject to, 300. penalty for failure to pay, 303. effect of failure to pay, 310. civil penalty, how recovered, 309, 310. record to be kept, 307. penalty for failure to keep record, 307-309. registration; penalty for failure, 305. state comptroller to examine books and papers, 307-309. STREET, etc. See Condemnation. SUBPOENA DUCES TECUM, 325, 326. personal attendance not required by, 326. SUBSCRIBERS. See Incorporators. SUBSCRIPTIONS, amount required to begin business, 2, 7. directors may open books for, 212. when payment to be made, 212. ten per cent, of, when to be paid, 212. fictitious, etc., misdemeanor, 367. SUMMONS, service on domestic corporations, 320, 321. personal service on foreign corporations, 320, 321. service by publication, 322, 323. See Justices' Courts. SUPPLEMENTARY PROCEEDINGS, 330. SURETY, as part of corporate name prohibited, 37, 44. SURROGATE'S COURT ACT PROVISIONS, 346-348. TAX, organization, 188, 189, 260, 261. reorganization, 177, note, 191, 260, 261. on increase of capital, 260. on consolidation, 260. license, payable by foreign corporations, 261, 262. See Income Tax; Organization Tax; Reincorporation; Stock TEAN-SFBft- Stamts. 542 INDEX [Beferenees are to pages.'] TAXATION, annual franchise tax, 262-265, 278-298. corporations exempted from, 265. reports to tax commission, 280-283. exemption from other taxation, 298. ^ applicable to foreign corporations, 262. corporations merging or consolidating with other corporations, 286, 287. local taxation of domestic corporations, 247, 248. local taxation of foreign corporations, 247, 248. capital stock taxed locally, 248. reports to assessors, 261. mode of assessment, 246, 247. ■ preparation of assessment-roll, 249-251. stock with no par value, 188, 189, 260, 262, 286. TAX COMMISSION. See Franchise Tax ; Taxation. TAX LAW, 243-311. TITLE, as part of corporate name, prohibited, 37, 44. TRANSFER BOOK to be open to stockholders, 204, 205. of foreign corporations, 206, 207. penalty for not keeping, 205. TRANSFER OF STOCK, 210. by stockholder indebted to corporation, 211. See Stockholders; Stock Teanspee Stamps; Unifokm Stock Teanspee Act. TRANSFERS of property to ofScers, directors and stockholders when corporation insolvent, void, 223, 224. See Consolidation; Stockholders. TREASURER or secretary must sign stock certificates, 210. or secretary to verify certificate of payment of one-half of capital stock, 8. or chief fiscal officer to give financial statement under oath to certain stockholders, 227. to make and file annual report on demand, 207, 208. See Directors ; Officers ; Secretary. TRUST, as part of a corporate name, prohibited, 37, 44, 369, 372. TRUSTEE holding stock, when individually liable, 215. when not liable, 215. TRUSTEES. See Directors. TRUSTS. See Combinations; Voting Trusts. UNIFORM STOCK TRANSFER ACT, 359-435. UNINCORPORATED ASSOCIATIONS, actions by and against, 236 238. INDEX 543 [Beferenoes are to pages.} USURY, 408-414. defense of, prohibited, 409, 410. transfer of cause of action for, 410. restitution for, 414. VICE-PRESIDENT. See Peesident. VOLUNTARY DISSOLUTION by petition of directors, 102-110. by incorporators, 115. by stockholders' consent, 116-118. when a majqrity of directors may petition, 102. when directors are equally, divided, 103. contents of petition, schedules, etc., 104. affidavit to same, 105. presentation of petition, etc., 105. order to show cause to be published, 105-107. order to show cause to be served on creditors and stockholders, 106. hearing; report of referee, 108. original papers may be used on hearing, 108. application for final order, 108, 109. permanent receiver may be appointed on final order, 109. sales, transfers and judgments void, when, 110. certain corporations excepted, 114. See Dissolution. VOTE. each share of stock entitled to one, 51. cumulative voting, 53, 54. by proxy, 54, 55. by fiduciaries who disagree, 52, 53. oath may be required from voter, 55, 56. stock book, evidence of right to, 52. preferred stock, 52. deprivation of right to, 52. stockholder not to sell, 373. See Bonds ; Co-operative Corporations ; Cumulative Voting. VOTING TRUST, agreements, 54. limited as to time, 54. WAGES. See Employees. WAIVER of notice and time, 64. WATER COMPANIES, 18.