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CJorn^U Cam i>rl|Ool Ctbtatg http://www.archive.org/details/cu31924022796514 NEW YORK BUSINESS CORPORATIONS INCLTTDIHG Business Corporations Laws, General Corporation Law, Stock Corporation Law, General Construction Law, Joint-Stock Association Law and all provisions affecting Corporations embraced in the State Constitution, Tax Law, Penal Law, Labor Law, General Business Law, Personal Property Law, Lien Law, Negotiable Instruments Law, ' Real Property Law, Codes of Civil and Criminal Procedure; TABLES OF ORGANIZATION FEES, EXPENSES AND FRANCfflSE TAXES and the FEDERAL CORPORATION TAX LAW FOURTH EDITION-REVISED AND ENLARGED WITH NOTES AND FORMS BY JOSEPH A. ARNOLD OF THE NEW"f0RK BAR NEW YORK: BAKER, VOORHIS & COMPANY 45-47 John Street 191 1 Copyright, ipoi, igo2, 1903, 1904, 190S, 1906, 1907, By Baker, Voorhis & Company Copyright, 1909, 1912, By Baker, Voorhis & Company PREFACE TO FOURTH EDITION The laws of the State of New York pertaining, to stock corporations organized for commercial purposes, other than banking, insurance, transportation and railroad cor- porations, were assembled by the laws of 1890 into an act entitled " The Business Corporation Law." The Consolidated Laws of 1909, which mark an epoch in the legislative and legal history of the State of New York, retained as Chapter Four the Business Corporations Law with slight changes. All corporations formed for busi- ness purposes, including manufacturings mining, real estate and all corporations of a mercantile character, must be organized under the Business Corporations Law which is given in full in this book with all amendments thereto up to the close of the legislative session of 1911. The Stock Corporation Law relates to the powers, rights and management of stock corporations, and to the rights, duties and liabilities of directors, officers and stockholders. Its provisions are applicable to business corporations. The General Corporation Law, which pertains to all corporations, was enlarged in 1909 by transferring to it many sections of the Code of Civil Procedure and by the addition of independent statutes. See Consolidators' Note, page 21. Most of the sections of the former General Corporation Law and Stock Corporation Law were re- numbered, and not a few were separated into two or more sections. For purposes of ready reference the Compara- tive Section Tables on pages xxx to xxxiii, inclusive, will be found useful. These tables will also enable the reader quickly to locate the sections of the General Corporation Law and Stock Corporation Law to which matter from the Code of Civil Procedure has been transferred. [iii] IV PREFACE TO FOURTH EDITION Since 1901 the rights and powers of business corpora- tions have been greatly amplified, and the stringent lia- bilities of directors and stockholders have been done away with or lessened. While the first j:ost of incorpo- ration is greater in New York than elsewhere, the annual state tax of a New York corporation is lower than that of a foreign corporation, similarly situated, which does business within the state. The corporation laws of New York are without doubt the 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 ot their business or operations therein. JOSEPH A. ARNOLD. 22 William Street, New York. January 2, 1912. TABLE OF CONTENTS BUSINESS OOBPORATIONS LAW. Aeticue 1. Short Title. PAGE. Section 1. Short title 1 Article 2. General Provisions. Section 2. Incorporation 1 2a. Incorporating for the purpose of conducting law business, etcetera, 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 stockholders. 11 9. Powers of consolidated corporations 13 10. Transfer of property of old corporations to consoli- dated corporations 13 11. Rights of creditors of old corporations 14 12. District steam corporations 15 13. Examination of meters by agent of district steam corporations 16 14. Entry by agent of district steam corporation to cut off steam 17 15. Water companies ; 18 16. Improvement corporations; right of condemnation. ... 18 Article 3. Laws Repealed; When to Take Effect. Section 25. Laws repealed 20 26. When to take effect 20 Schedule of laws repealed , 20 [V] VI TABLE OF CONTENTS GENERAL CORPORATION LAW. Article L Short Title; Classification; Definitions. FAOE. Section 1. Short title 22 2. Classification of corporations 22 3. Definitions 23 Article 2. General Provisions. Section 4. Qualifications of incorporators 26 5. Filing and recording certificates of incorporation... 26 6. Corporate names 27 7. Amended and supplemental certificates 28 8. Lost or destroyed certificates 29 9. Certificate and other papers as evidence; evidence of consolidation 29 10. Limitation of powers ; provisions of certificate 30 11. Grant of general powers 31 12. Enlargement of limitations upon the amount of the property of non-stock corporations 32 13. Acquisition of additional real property 33 14. Acquisition of property without the state 33 15. Certificate of authority of a foreign corporation. ... 34 16. Proof to be filed before granting certificate 35 17. Reincorporation of foreign moneyed corporations. ... 36 18. Papers to be filed upon reincorporation 37 19. When reincorporation efi'ective and eff'ect thereof.. 38 20. Acquisition of real property in this state by certain foreign corporations 38 21. Acquisition by foreign corporation of real property in this state 38 32. Prohibition of banking powers 39 23. Qualification of members as voters 39 24. Cumulative voting 40 25. Voting trust agreements 41 26. Proxies ,. 42 27. Challenges 42 28. Efi'ect of failure to elect directors 43 29. Mode of calling special election of directors 43 30. Mode of conducting special election of directors 44 31. Qualification of voters and canvass of votes at special election 44 32. Powers of supreme court respecting elections 45 TABLE OF CONTENTS VU PAGE. Section 33. Stay of proceedings in actions collusively brought. . 45 34. Quorum of directors and powers of majority 46 35. Directors as trustees in case of dissolution 46 36. Forfeiture for non-user 47 37. Extension of corporate existence 47 38. Revival of corporate existence 48 39. Approval of certificates of extension or revival; virheii required 49 40." Extension when stock is owned by another corpora- tion 50 41. Effect of extension 50 42. When notice or lapse of time unnecessary 51 43. As to acts of directors 51 44. Political contributions prohibited; penalty ».. 51 AKTICU! 3. Change of Name. Section 60. Petition by corporation to change name 53 01. Contents of petition 54 62. Notice of presentation of petition 54 63. Order authorizing change 55 ' 64. When change to take effect 56 65. Substitution of new name in pending action or pro- ceeding 57 Abtici-e 4. Sale of Corporate Real Property. Section 70. Application of this article 58 71. Petition 5S 72. Hearing on application 59 73. Order to sell, mortgage or lease 60 74. Insolvent corporation 60 75. Service of notices 60 76. Practice in cases not herein provided for 60 Aeticle 5. Judicial Superoision of Corporation and of the Officers and Memhers Thereof. Section 90. Action against officers of liorporation for misconduct. 62 91. Who may bring such an action 63 92. Visitatorial power over corporation not affected by this article 63 Viii TABLE OF CONTENTS Aeticle 6. Action for Sequestration, Action for Dissolution and Action to Enforce Individual Liability of Officer and Member of Corpora- tion. * PAGE. Section 100. Action by judgment creditor for sequestration .... 64 101. Action to dissolve a corporation 65 102. Who may bring action to dissolve a corporation. . . 65 103. Temporary injunction in action authorized by this article ■ • • 65 104. Temporary receiver 66 105. Additional powers and duties of temporary receiver. 67 106. Permanent receiver 67 107. Additional duties and liabilities of permanent re- ceiver 67 108. Application for appointment of receiver 68 109. Officers and stockholders may be made parties in action brought by creditor 68 illO. Separate action may be brought against officers and stockholders 68 111. Proceedings in such actions 69 112. Distribution of property of corporation by judg- ment in actions under tliis article 09 113. Recovery of stock subscriptions 69 114. Liability of directors and stockholders 70 115. Effect of this article 70 Akticlb 7. Action to Annul a Corporation. Section 130. Action by attorney-general to annul corporation when legislature directs 71 131. Action by attorney-general to annul corporation by leave of court 71 132. Notice of application for leave to commence action to annul corporation '. 72 133. Jury trial ^ 72 134. Injunction and receiver in final judgment 72 135. TempOTary injunction 73 136. Filing and publishing judgment 73 ASTICtE 8. Action to Dissolve Moneyed Corporation. Section 150. Temporary injunction and receiver in action against moneyed corporation 74 151. Order to show cause why injunction and receiver should not be permanent 75 TABLE OF CONTENTS IX PAGE. Section 152. Inventory and appraisal by receiver 75 153. Conversion of assets into casli by receiver 76 154. Employment of counsel by receiver 76 155. Notice to creditors by receiver 77 156. Allowance, rejection and adjustment of claims by receiver . . . ." 78 157. Final settlement and distribution by receiver 78 158. Notice of account and accounting by receiver 79 , il59. Proceedings upon accounting SO 160. Claims barred after distribution of assets by re- ceiver 81 161. Application of article SI Article 9. Proceedings for Voluntary Dissolution of Corporation. Section 170. Petition for voluiitary dissolution of corporation.. 62 171. Directors or trustees may be required to petition.. 83 172. Petition when directors or trustees do not agree. . . 83 173. Corporations excepted from two preceding sections. 84 174. Contents of petition 84 175. Affidavit to be annexed to petition. 85 176. Presentation of petition 85 177. Corporations without stockholders 85 178. Action by qpurt upon petition for dissolution 85 179. Publication of order to show cause why corpora- tion should not be dissolved 86 180. Service of order to show cause 86 181. Entering and filing order and papers 86 182. Temporary receiver 87 183. Application for appointment of receiver. 87 184. Injunction '. 88 185. Referee 88 186. Hearing 88 187. Decision 88 188. Use of original papers on hearing 88 189. Amending papers 89 190. Final order 89 191. Permanent receiver , 89 192. 'Appointment of director, trustee or other officer or stockholder as receiver 90 193. Certain sales, transfers and judgments void 90 194. Omission, defect or default of receiver 90 195. Exception of certain corporations 91 TABLE OF CONTENTS Article 10. Dissolution of Stock Corporation without Judicial Proceedings. FAOE. Section 220. Dissolution of stock corporation before beginning business 92 221. Dissolution of stock corporation before expiration of time limit 93 AKTiCLE'.'lOa. Provisions Applicable to Temporary and Permanent Receivers of Corporations. Section 22.5. Security ' 96 226. Removal or new bond 90 227. Notice to sureties upon accounting. 97 Article 11. Powers, Duties and Liabilities of Receivers of Corplorwfion. Section 230. Application of this article 100 231. Receiver trustee of property 100 232. Receivers title to property 100 233. Transfer of assets of corporation to receiver 100 234. Security of receiver 100 235. Authority of single receiver 101 236. Authority where there is more than one receiver. . 101 237. Surviving receivers 101 238. Oath of receiver ' 101 239. General powers of receivers 101 240. Power of receiver to institute proceedings to recover assets 103 241. Power of receiver in' the- settlement of controyergies. -105 242. Power of receiver to employ counsel 106 243. Power of receiver to hold real property 107 244. Power of receiver to recover stock subscriptions . . 107 245. Duty of receiver to convert assets into money .... 108 246. Duty of receiver as to private sales 108 247. Duty of receiver to keep accounts 108 248. Duty of receiver to serve copy of report upon at- torney-general and superintendent of banks 108 249. Duty of certain receivers to make reports 109 250. Duty of receivers to give notice to creditors 110 251. Delivery of property and payment of debts to re- ceiver after notice 110 252. Penalty for concealing property from receiver 110 263. Duty of receiver to call creditors' meeting Ill 254. Proceedings at creditors' meeting Ill TABLE OF CONTENTS XI PAGE. Section 255. Deduction of disbursements and commissions by receiver Ill 256. Refunding consideration of subsisting contracts. ... 112 257. Retention of funds for subsisting contracts and pending suits 112 258. Payment of debts not due 112 259. Allowance of set-offs 113 260. Penalties; recovered' by receiver. .„ 113 2C1. Order of payment by receiver 113 262. Failure to file claim before first dividend 114 263. Second dividend by receiver 114 264. Surplus to stockholders 11.5 265. Disposition of moneys retained by receiver for suits. 115 266. Duty of receiver as to unclaimed dividend 115 267. Effect of failure to.file claim before second dividend. 115 268. Final accounting by receiver ; . . 116 269. Notice of final accounting 116 270. "Hearing on = final accounting 116 271. Reference of final account 117 272. Further accounting 117 273. R,emoval of receiver 117 274. Vacancy 117 275. Renunciation by receiver 117 270. Control of receiver by court 119 277. Commissions and expenses of receiver in voluntary dissolution 119 278. Commissions and expenses of receiver except in vol- untary dissolution 119 Article 12. Provisions Applicable to Two or More of the Fovegoing rProoeedmgs or Actions. Section 300. Application of preceding articles to certain corpora- tions 121 301. Oflicers and agents may be compelled to testify in certain actions 122 3(^. Injunction staying actions by creditors in certain actions 122 303. Creditors of corporation may be brought in to prove their claims in certain actions 122 304. When attorney-general must bring certain actions. 123 306. Requisites of injunction against corporations in certain cases 124 306. Appointment of receivers of property of corpora- tions ■ • 124 Xll TABLE OF CONTENTS ' PAGE. Section 307. Judicial suspension or removal of officer of corpora- tion ,. ■ ■ • • 125 308. Application of the last three sections 135 309. Misnomer not available in action against stock- holder 125 310. Appraisal of property of insolvent corporation .... 126 311. Application by attorney-general for removal of re- ceiver and to facilitate closing affairs of re- ceivership 126 312. Service of papers upon attorney-general. 127 313. Designation of depositories of funds in order ap- pointing receiver 127 314. Application to the court in certain actions and proceedings , 128 316. County wherein action ipay be brought by attorney- general on behalf of the people Il28 316. Preferences in actions *of proceedings by or against receivers 128 Abticle 13. Alteration and Repeal of Charter of Corporation. Section 320. Alteration and repeal of charter 129 321. Conflicting corporate laves 129 Article 14. ■ Laws Repealed; Construction ; When to Take Effect. Section 330. Laws repealed 130 331. Construction 130 332. When to take effect 130 Schedules of laws repealed ; 130 STOCK CORPORATION LAW. • Aeticle 1. Shcyrt Title. Section 1. Short title ; 145. Aeticle 2. General Provisions. Section 5. Application of article 146 6. Power to borrow money and mortgage property 146 * So in original. TABLE OF CONTENTS xiii PAGE. Section 7. Validating corporate mortgages. 148 8. Power to guarantee bonds of other corporations. . .'. 150 9. Reorganization upon sale of corporate property.... 151 10. Contents of plan or agreement 152 11. Sale of property; possession of receiver and suits against him 153 12. Municipalities may assent to plan of readjustment.. 154 13. Change of place of business 155 14. Combinations prohibited 156 15. Merger 156 16. Voluntary sale of franchise and property 157 17. Eights of non-consenting stockholders on voluntary sale of franchise and property 158 18. Alterations or extension of business 159 Article 3. Directors and Officers. Section 25. Directors 160 26. Change of number of directors 161 27. When acts of directors void 163 28. Liability of directors for making unauthorized divi- dends 163 29. Liability of directors for loans to stockholders. ... 16t 30. Officers 164 31. Inspectors and their oath 165 32. Books to be kept 166 33. Stock books of foreign corporations 167 34. Annual report to secretary of state 168 35. Liability of officers for false certificates, reports or public notices 169 Aeticlb 4. ^ Stock and Stockholders. Section 50. Issue and transfers of stock 171 51. Transfers of stock by stockholder indebted to cor- poration 172 52. Purchase of stock of other corporations 172 53. Subscriptions to stock 173 54. Time of payment of subscriptions to stock 173 55. Consideration for issue of stock and bonds 174 56. Liabilities of stockholders 175 57. Liabilities of stockholders to laborers, servants or employees 176 Xiv TABLE OF CONTENTS PAGE. Section 58. Non-liability in certain eases 176 • 69. Limitation of stockholder's liability 177 60. Partly paid stock 177 61. Preferred and common stock j 178 62. Increase or reduction of capital stock 179 63. Notice of meeting to increase or reduce capital stock. 179 64. -Conduet^of such. meeting; certificate of increase or reduction 180 65. Change in par value of shares 182 66. Prohibited transfers to officers or stockholders 182 ' 67. Application to court to order issue of new in place of lost certificate of stock 184 68. Order of court u;^on such application 185 69. Financial statement to stockholders 186 70. Liabilities of officers, directors and stockholders of foreign corporations 187 Abticle 5. Laws Repealed; When to Take Effect. Section 80. Laws repealed 188 81. When to take effect 188 Schedule of laws repealed 188 TAX LAW PKOVISIONS, Local Taxation. Aeticle 1. Taxable Property and Place of Taxation. Section 1. Short title 193 2. Definitions 193 3. Property liable to taxation 195 4. Exemption from taxation 195 6. No ftduction allowed for indebtedness fraudulently contracted 195 7. When property of non-residents is taxable 195 9. Place of taxation of real property 196 10. Taxation of real property divided by line of tax district 196 11. Place of taxation of property of corporations 197 12. Taxiation of corporate stock 197 table of contents xv Abticle 2. Mode of Assessment. PAGE. Section 20. Ascertaining faxsts for assessment 197 21. Preparation of assesment roll 198 27. Reports of oarporations 200 28. Penalty for omission to malce statement 200 State Taxation. Article 9. Corporation Tam. Section 180. Organization tax 201 181. License tax on foreign corporations 203 182. Franchise tax on corporations 204 183. Certain corporations exempt from tax on capital stock 206 [184-191, inclusive, omitted in this book.] 192. Reports of corporations 207 193. Value of stock to be appraised 208 194. Further requirements as to reports of corporations. 208 195. Powers of comptroller to examine into affairs of corporations 209 196. Notice of statement of tax; interest 210 197. Payment of tax and penalty of failure 210 198. Revision and readjustment of accounts by comp- troller ' 211 199. Review of determination of comptroller by certi- orari 212 200. Regulations as to such writ of certiorari 213 201. Warrant for the collection of taxes 213 202. Information of delinquents 214 203. Action for recovery of taxes ; forfeiture of charter of delinquent corporation 214 204. Reports to be made by the secretary of state 215 205. Exemptions from other state taxation 215 206. Application of taxes 216 207. Limitation of time 216 XVI TABLE ■OF CONTENTS Aeticle 12. Ta/x on Transfers of Stock. PAGE. Section 270. Amount of tax a 217 271. Stamps, how prepared and sold 218 271-a. Sale of stamps 219 272. Penalty for failure to pay tax 219 273. Cancelling stamps; penalty for failure 220 274. Contracts for dies ; expenses how paid 220 275. Illegal use of stamps; penalty 221 276. Power of state comptroller 221 277. Civil penalty ; how recovered 223 278. Effect of failure to pay tax 223 279. Application of taxes 224 280. Refund of tax erroneously paid 224 Rulings of state comptroller's office 226 CODE OF CIVIi PROCEDURE PROVISTONiS. Cotmty Courts — Jurisdiction. Section 341. Domestic corporation; when deemed resident 230 399. Attempt to commence action in a court of record . . 230 400. Attempt to commence action in a court not of record 231 Summons. 431. How personal service of summons made upon a do- mestic corporation i 231 432. Service of summons upon a foreign corporation. . . . 231 433. Service of process, etc., to commence a special pro- ceeding 232 438. Cases in which service of summons by publication, etc., may be ordered 232 439. Papers upon which order for publication may be made 233 Pleadings. 525. Verincation ; how and by whom made 233 526. Form of affidavit of verification 234 Arrest. 549. When the right to arrest depends upon the nature of the action 234 Injunction. 610. Order to recite grounds; service of order 235 624. Damages sustained by a third person 235 625. Action on the undertaking 235 TABLE OF CONTENTS XVU Attachment. page. Section 635. In what actions a warrant of attachment may be granted 235 636. What must be shown to procure the warrant 236 646. Attachment of unpaid subscription to foreign cor- poration 237 647. Attachment; interest in corporation 237 648. Attachment; bond, note, etc 237 649. How property to be attached 238 650. Certificate of defendant's interest to be furnished . . 239 651. Person refusing certificate may be examined 239 707. When jud^nent enforceable only against attached property 240 Preferred causes. 791. Preference among civil actions 240 Evidence. 839. Admission by member of corporation 241 Suhpcena duces tecum; order to produce. 867. Production, etc., of book of account 241 868. Books, etc., of' corporation, how produced 241 869. When personal attendance ;iot required by subpoena duces tecum 242 Documentary evidence. 929. Book of foreign corporation; when evidence 242 930. When a copy thereof is evidence 242 931. How copy to be verified 243 931a. Copy of designation of person upon whom to make service, as evidence 243 Reference of actions. 1011. Reference by consent; when and how made 243 1012. Qualification of the last section. 244 Challenges to jurors. 1180. Challenges, how tried. Exceptions to and review of tlie determination of the court, in reference thereto 244 Garnishment. 1391. Executions against wages, income, etc 244 Determination of claim to real property. 1650. This article applies to corporations 246 Actions. 1775. Complaint in actions by or against corporations. . 246 1776. When proof of corporate existence unnecessary..'.. 247 1777. Misnomer, when waived 247 1778. Action against a corporation upon a note, etc 247 1779. When foreign corporation may sue 247 1780. When foreign corporation may be sued 248 XVlll TABLE OF CONTENTS Judgment creditor's action. PAGE. Section 1S79. Application of this article; what property cannot be reached 248 Action against usurper of office. 1948. Attorney-General may maintain action 249 1949. Proceedings when complaint names rightful ineumr bent 250 1950. Action triable by jury 250 1953. Damages ; how recovered 250 1954. One action against several persons 250 1955. When injunction may be granted 251 1956. Final judgment in action for usurping ofiice, etc. . . . 251 Supplementary proceedings. 2463. Cases where this chapter is not applicable; what property cannot be reached 252 Probate of a will and grant of letters of adminis- tration. 2643. Letters of administration with will annexed ....... 252 Justices of the peace. 2865. Actions by and against officers, etc., and by execu- tors, ^tc 253 2869. In what town, 'etc., action must be brought 253 2879. Service of summons upon a corporation 254 Attachment in justices' courts, 2905. In what actions, warrant of attachment may be granted 254 2906. What must be shown to procure a warrant 254 3074. Security for costs in justices' courts 255 Security for costs generally. 3268. When defendant may require security for costs. . 255 3270. The last two sections qualified 255 Definitions. 3343. Definition of domesitic corporation; foreign cor- poration 256 • PENAL LAW PROVISIONS. Section 280. Corporations not to practice law 257 421. Untrue and misleading advertisements 259 430. Marking articles made of linen 260 431. Marking articles made of gold 260 432. Illegal charges for elevating, receiving or dis- charging grain 260 433. Sale of agricultural products on commission 261 TABLE OF CONTENTS XIX PAGE. Section 434. Concealing foreign matter in merchandise 261 435L False labels '. 261 436. Using false marks as to manufacture 262 437. Penalty for selling half wine not labeled 262 438. Skimmed milk 262 439. Corrupt influencing of agents, employees or serv- ants ' 263 440. Conducting business under assumed name 263 441. Producing unpublished, undedicated or copyrighted opera or dramatic composition without consent of owner 264 442. Provisions when property is purchased on credit by aid of written statement of purchaser's ability to pay 265 531. Coercion by employers 266 584. Witnesses' privilege 266 Abticle 64. Corporations. Section 660. Frauds in the organization of corporations 267 661. Frauds in pro6uring organization of corporations. 268 662. Fraudulent issue of stocks and bonds 268 663. Acting for foreign corporations not authorized to do business in this state 269 664. Misconduct of oflicers and directors of stock cor- porations 269 663. Misconduct of directors, officers, agents and em- ployees of corporations 270 666. Unlawful use of certain titles in connection with corporate name 271 667. Presumption of knowledge of corporate condition - and business and of assent thereto by directors; definitions 272 . 668. Misconduct of corporate elections 272 669. Misconduct of officers and agents of pipe-line cor- porations 273 670. Misconduct by officers and directors of life or casu- alty insurance corporations upon the co-operative or assessment plan or of fraternal beneficiary societies, orders or associations 273 759. Refusal to permit employees to attend election.... 274 882. Falsely indicating person as corporate officer 274 889. Forgery in third degree 274 890. Officer of corporation selling fraudulent shares 276 XX TABLE OF CONTENTS PAGE. Section 893. Punishment for forgery in third degree 276 926. Fal^ rumora as to stocks, bonds or public funds . . 276 950. False statements in regard to employment 277 1271. Hours of labor to be required. . , 273 1272. Payment of wages 279 1275. Violations of provisions of labor law 279 1276. Negligently furnishing insecure scaffolding 280 1277. Neglect to complete or plank floors of buildings constructed in cities , 280 1932. Punishment of corporation convicted of felony.... 281 CODE OF CRIMINAL PROCEDURE PROVISIONS. Section 335. Plea of guilty ; how put in 282 675. Summons upon an information or presentment against a corporation; by whom issued and when returnable 282 676. Form of the summons 282 677. When and how served 282 678. Examination of the charge 283 679. Certificate of the magistrate, and return thereof with depositions 283 680. Grand jury may proceed as in the case of a natural person 283 681. Appearance and plea to indictment and proceedings thereon 283 682. Fine on conviction ; how collected 285 ^ LABOR LAW PROVISIONS. Section 3. Hours to constitute a day's work 286 5. Hours of labor in brick yards 286 9. Payment of wages by receivers 286 10. Cash payment of wages 287 11. When wages are to be paid 287 12. Penalty for violation of preceding sections 288 TABLE OF CONTENTS Xxi Abticle 14. Employer's Liability. PAGE. Section 200. Employer's liability for injuries 289 201. Notice to be served 290 202. Assumption of- risks ; contributory negligence, when a question of fact 291 202a. Trial; burden of proof 292 203. Defense ; insurance fund 293 204. Existing rights of action continvied 293 205. Consent by employer and employee to compensation plan 293 206. Liability to pay compensation; notice of accident. 294 207. Amount of compensation ; persons entitled ; physical examination 295 208. Settlement of disputes 297 209. Preferential claim; not assignable or subject to attachment; attorney's fee 298 210. Cancellation of consent 298 211. Reports of compensation plan 299 212. Reports by employer 299 GENERAL BUSINESS LAW PROVISIONIS. Section 340. Contract for monopoly illegal and void 300 341. Penalty 300 342. Action to restrain and prevent 301 343. Procedure; application for order 301 344. Order for examination 302 345. No person excused from answering 303 346. Powers of referee. 303 Abticle 25. Interest and Usury. Section 370. Rate of interest j 304 371. Usury forbidden i 304 372. Recovery of excess 304 373. Usurious contracts void 305 374. Corporations prohibited from interposing defense of usury , 305 xxil TABLE OF CONTENTS PAGE. Section 375. Transfer of catise of action for usury 305 376. Return of excess a bar to further penalties 306 377. .Borrower bringing an action need not offer to repay '. 306 378. How interest calculated 306 379. Interest permitted on advances on collateral se- curity 307 380. Brokerage on loans '. 307 381. Recovery of excess 307 382. Restitution a bar to further penalties 308 LIEN LAW PROVISIONS. Section 42. Regulating loans of money on salaries 309 45. Notice of liens upon merchandise or the proceeds thereof to secure loans or advances 311 231. Corporate mortgages against real and personal property 313 232. Where filed 314 NEGOTIABLE INSTRUMENTS LAW PROVISIONS. Section 41. Effect of indorsement by infant or corporation.... 315 72. Effect of instrument drawn or indorsed to a person as cashier 316 332. How negotiable bonds are made non-negotiable.... 315 PERSONAL PROPERTY LAW PROVISION. Section 33. Validity of certain agreements made without consideration 316 REAL PROPERTY LAW PROVISION. Section 309. Acknowledgment by corporation and form of cer- tificate 317 TABLE OF CONTENTS XXIU APPENDIX. JOINT-STOCK AiSlSOCIATION LAW. Article 1. Short Title; Definitions. FAGE. Section 1. Short title 321 2. Definitions ^321 Article 2. General Provisions. Section 3. Contents of articles of association 321 4. Certificate to be filed within sixty days and annually thereafter ; penalty ; evidence .' 322 5. Dissolution .' 322 6. Power to take and convey real property 322 7. Changing articles of association 323 8. Proceedings to mortgage, lease or sell real estate . . . 323 Article 3. Laws Repealed; When to Take Effect. Action 20. Laws repealed 324 21. When to take eflect 324 Schedule of laws repealed 324 GENERAL CONSTRUCTION LAW. Article 1. Short Title. Section. 1. Short title ; 325 XXIV TABLE OF CONTENTS Abticle 2. Meaning of Terms. PAGE. Section 10. Acknowledge and acknowledgment 326 11. Acknowledgment or proof of instrument 326 12. Affidavit 327 13. Adjournment of meeting 327 14. Bond and undertaking 327 15. Chattels 327 16. Choose 327 17. Civil code and criminal code 327 18. Consolidated laws 327 19. Da status of the holder of voting trust certificates as a stockholder for purposes other than voting, the stock. In this ease it was hgld 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 entitled 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. 7. 42 GENERAL CORPORATION LAW §§ 26,27 § 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. 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.— ]:,. 1890, Ch. 564, § 54; L. 1802, Ch. 687, § 21. For form of Promy, see Form No. 8. § 27. Challengep. — Every member of a corporation offering to vote at any election or meeting of the corpora- tion 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 following oath : " I do solemnly swear that in voting at this elec- tion I have not, either directly, indirectly or impliedly 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 person shall pre- sent 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 proxy to me to vote at this election, or re- ceived any promise or any sum of money or anything of value to influence the giving of my vote at this meet- §§ 28, 29 GENERAL CORPORATION LAW 43 ing, or as a consideration therefor." The inspectors or persons presiding at the election may 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, Oh. 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, thp 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, T 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, CK 236, § 6; L. 1887, Oh. 317, § 6; L. 1887, Ch. 501, § 3; L. 1888, Ch. 293, § 4; L. 1890, Ch. 563, § 18. § 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 electiiJg 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- See § 25, Stock Corporation Law, post. 44 GENERAL CORPOR/VTION LAW §§ 30, 31 mediately preceding the election, in a newspaper pub- 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 t^e 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 Corporation Law. Derivation.— I.. 1892, CIi. 687, § 24. Compare L. 1885, Cli. 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. § 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, §§ 32, 33 GENERAL CORPORATION LAW 45 the whole number of shares of stock of the corporation outstanding. On fihng such statement, he may vote as a member of the corporation; and if a stock corporation, he may vote on the shares of stock 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. — I 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 afiFected 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, Greneral Corporation Law. Derivation.— L. 1892, Ch. 687, § 27. Compare L. 1890, Ch. 563, § 15. See 186 N. Y. 216; 138 N. Y. 557; 134 App. Div. 442; 115 App. Div. 821; 105 App. Div. 629; 61 Hun, 338. For form of above Petition, see Form No. 9. § 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, and such action is in the interest or for the benefit of any 46 GENERAL CORPORATION LAW §§ 34, 35 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, Greneral Corporation Law. Derivation.— L. 1890, Ch. 563, § 16; L. 1892, Ch. 687, § 28. Compare L. 1885, Ch. 489. § 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 resi- dent 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 transaction of business and the act of a majority of the directors 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 directors necessary to constitute a quorum at a num- ber 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 the members of a corporation, the di- rectors may make necessary by-laws of the corporation. Former § 29, General Corporation Law. Derivation.— L. 1890, Ch. 5'63, § 17; L. 1892, Ch. 687, § 29; L. 1901, Ch. 214, § 1; L. 1904, Ch. 737, § 1. . § 35. Directors as trustees in case of dissolution. — Upon the dissolution of any corporation, its directors, unless other persons shall be appointed by the legislatufe, or by some court of competent jurisdiqtion, shall be the §§ 36, 37 GENERAL CORPORATION LAW 47 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 remaining 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 jts creditors, stockholders or members, 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. § 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. 1892, Ch. 687, § 31. § 37. Extension of corporate existence. — Any domestic corporation at any time before the expiration thereof, may extend the 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 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 wa.s given by the stockholders in writing, or that it was given by vote at a meeting as aforesaid, shall be subscribed and 48 GENERAL CORPORATION LAW § 38 acknowledged by the president or a vice-president, and by the secretary or an assistant secretary of the corpora- tion, and shall be filed in the office of the secretary of state, and shall by him be duly recorded and indexed in a book specially provided therefor, and a certified copy of such certificate, with a certificate of the secretary of state of such filing and record, or a duplicate original of such certificate, shall be filed and similarly recorded and indexed in the office of th"e 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 stockholders owning 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 efifect an ex- tension of corporate existence as authorized by this sec- tion. Part of former § 32, General Corporation Law. Derivation.— L. 1890, Ch. 56.3, § 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. 1887, Ch. 12; L. 1867, Ch. 937; L. 1874, Ch. 240; L. 1875, Ch. 58, § 1; L. 1875, Ch. 611, § 29. For form of Consent and Certificate of Consent or Vote to Eao- tend Corporate Existence, see Form No. 10. § 38. Revival of corporate existence. — If the term of existence of a«y 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 law 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 § 39 GENERAL CORPORATION LAW 49 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 and recording of a certificate reviving the existence of such corporation, upon such conditions and with such limitations as such order shall specify, and extending such dorporate existence for a term not exceeding the term for which il^ was originally incorporated. Upon filing and recording such certificate in the same manner as certificates of extension of cor- porate existence duly issued before the expiration of the existence of a domestic corporation are authorized by law to be filed and recorded, such corporate existence shall be revived and extended in pursuance of the terms of such order, but such revival and extension shall not affect any litigation commenced after such expiration and pending at the time of such revival. Amended by L. 1911, Ch. 63, taking effect April 5, 1911. Part of former § 32, General Corporation Law. Derivation.— L. 1892, Ch. 687, § 32; L. 1900, Ch. 177, § Is L. 1901, Ch. 355, § 1 ; L. 1905, Ch. 256, S 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 superin- tendent of banks; or, if an insurance corporation, unless 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 4 50 GENERAL CORPORATION LAW §§ 40, 41 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, CSi. 177, § 1; L. 1901, Ch. 355, § Ij 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 corporatioh 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 secre- tary 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 oi the state relating to the incorporation of a corporation for the purpose of carrying on the business 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. §§ 42-44 GENERAL CORPORATION LAW 51 § 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 zfction 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, Oneral Corporation Law. Derivation.— L. 1895, Ch. 672, § 2. For forma of Waiver of Ifotioe, see Forms Nos. 11 and 12. § 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, managers or trustees. At any meeting at which every member of the board of directors shall be present, though held with- out notice, any business may be transacted which might have been transacted if the meeting had been duly called. Except when otherwise required by law or the by-laws of the corporation, special meetings of the members of the corporation may be called in the same manner as the an- nual meeting thereof. Former § 39, General Corporation Law. Derivation.— L. 1895, CSi. 672, § 2; L. 1901, Ch. 355, § 1. § 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 52 GENERAL CORPORATION LAW § 44 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 ofiflce 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. § 60 GENERAL CORPORATION LAW 53 ARTICLE 3 Change of Name Section 60. Petition by corporation to change 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. § 6o. Petition by corporation to change name. A petition to assume another corporate name may be made by a domestic corporation, 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 corporation, at a special term held in the judicial district in which its certificate of incorpora- tion is filed or recorded, or in which its princpal property is situated, or in which its principal operations are or theretofore have been conducted. If it be a banking, in- surance or railroad corporation, the petition must be au- thorized by a resolution of the directors of the corpora- tion, and approved, if a banking corporation, by the su- perintendent of banks; if an insurance corporation, by the superintendent of insurance, and if a railroad cor- poration, by the public service commission. The peti- tion to change the name of any other corporation must have annexed thereto a certificate of the secretary of state, that the name which such corporation proposes to assume is not the name of any other domestic cor- poration or a name which he deems so nearly resembling it, as to be calculated to deceive. Amended by L. IS'IO, Ch. 296. From Code of Civil Procedure, § 2411. Consolidators' Note. "Code of Civil Procedure, §§ 2411 to 2416 have been consolidated in this article so far as they relate to ^tho change of name of a corporation. The portions of these sections relating to the change of the name of an individual have been left in the Code of Civil Procedure. The last sentence has been ommitted from § 63, because consolidated in County Law, § 161, subd. 6." 54 GENERAL CORPORATION LAW §§ 61, 62 § 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 desposits, or to make insurances, that the petition has been duly authorized by a resolution of the directors of the corporation and ap- proved by the proper officer. From Code of Civil Procedure, § 2412. For remainder of that section, see § 2412, Code of Civil Procedure. For forms of Resolution and Petition to Change Name, see Forms 2fos. 13 and 14. § 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 pubHshed 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, shal 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 weaks 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 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 § 63 GENERAL CORPORATION LAW 55 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 statej 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. From Code of Civil Procedure, § 2413. For remainder of that section, see § 2413, Code of Civil Procedure. For form of aiove Notice, see Form No. 15. § 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 the office 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 is 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 the special terni 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 56 GENERAL CORPORATION LAW § 64 of the superintendent of banks, or if it be an insurance corporation, in the office of the superintendent of insur- ance, 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 newspaper, 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 persons and in such manner as it thinks proper if the petition be made by a domestic corporation organized under or sub- ject to the religious or membership corporations law. Amended by L. 1910, Ch. 296. From Code of Civil Procedure, § 2414. For remainder of that section, see Code of Civil Procedure, § 2414, and County Law, § 161, subd. 6. See Consolidators' Note under § 60, ante. For form of above Order, see Form No. 16. § 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 in each office in which certified copies thereof are required to be filed, if any, the peti- tioner shall, on and after the day specified for that pur- pose 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 hundred and ninety-four, under sections two thousand four hun- dred and four^en 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-filing of an affidavit of the publication of the order changing such name within twenty days from the date thereof. Prom Code of Civil Procedure, § 2415. § 65 GENERAL CORPORATION LAW 57 § 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 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 proceeding. From Code of Civil Procedure, § 2416. 58 GENERAL CORPORATION 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. Iiigolvent corporation. 75>. Service of notices. 76. Practice in cases 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. From Code of Civil Procedure, § 3390. For remainder of that section, see Joint-Stock Association Law, § 8. § 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 descriigion of the real property to be sold, mort- gaged or leased, by metes and bounds, with reasonable certainty. Consolidators' Note. — ^"Code of Civil Procedure, §§ 3390-3396, so far as they relate to proceedings for the sale of the real property of a corporation, have been consolidated in this article, and the portion relating to the sale of the real property of a joint-stock association has been consolidated in Joint- Stock Association Law, § 72 GENERAL CORPORATION LAW 59 4. That the interests of the corporation will be pro- moted by the sale, mortgage or lease, of the real propert}' 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, trus- tees or managers of the corporation at a meeting thereof, duly called and held, and a copy of the resolution grant- ing 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, stockholders 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. Prom Code of Civil Procedure, § 3391. § 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- fied 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- terests may be affected by the proceeding, may appear 60 GENERAL CORPORATION LAW §§ 73-76 upon the hearing and show cause why; the application should not be granted. Code of Civil Procedure, §§ 3392, 3393, part. For remainder of § 3393, see § 73 following. § 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 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. From Code of Civil Procedure, § 3393, part. For remainder of § 3393, see § 72 ante. § 74. Insolvent corporation. — If the corporation 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. - From Code of Civil Procedure, § 3394. § 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 ancT addressed and postage paid, at least six- teen days before such hearing. From Code of Civil Procedure, § 3395. § 76. Pl-actice 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 § 76 GENERAL CORPORATION LAW 61 whom such appHcation 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. From Code of Civil Procedure, § 3396. 62 GENERAL CORPORATION LAW § 90 ARTICLE 5 Judicial Supervision of Corporation and of the Officers and Members Thereof Section 90. Action against officers of corporatien for misconduct. 91. M'Tio may bring an action. 92. Visitatorial power over corporation not affected by this article. § go. Action against officers of corporatipn 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 pur- poses, 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, br 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 election to be held by the body or board duly authorized to hold the same, in order»to supply the vacancy created by the re- moval ; or, where there is no such body or board, or where all the members thereof are removed, directing the re- Consolidators' Note. — '"This article is made up of the provisions of Ch. 15, Tit. 2, Art. 2 of the Code of CSvil Procedure, entitled ' Judicial supervision of a corporation and of the officers and mem- bers thereof.' It has been incorporated in the General Corporation Law as a separate article without change." §§ 91, 92 GENERAL CORPORATION LAW 63 moval to be reported to the governor, who may, with the advice and consent of tlie senate, fill the vacancies. 5. Setting aside an alienation of property, made by one or more trustees, directors, managers or other ofificers of a corporation, contrary to a provision of law, or for a pur- pose foreign to the lawful business and objects of the cor- poration, 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 , apptehend 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 section as they existed prior to that date shall apply. From Code of Civil Procedure, § 1781. T^he last paragraph is from L. f907, Ch. 157, § 2. Sfee 196 N. Y. 102; 133 App. Div. 122. § 91. Who may bring such an action. — An action may be brought, as prescribed in the last section, by the at- torney-general in behalf of the people of the state, or, ex- cept where the action is brought for the purpose specified in subdivision third or fourth of that section, by a cred- itor of the corporation, or by a trustee, director, manager, or other officer of the corporation, having a general superintendence of its concerns. From Code of Civil Procedure, § 1782. See 196 N. Y. 102; 13-3 App. Div. 122. § 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. From Code of Civil Procedure, § 1783. 64 GENERAL CORPORATION 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. 101. 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 reoeivel-. 106. Permanent receiver. 107. Additional duties and liabilities of permanent receiver, 108. Application for appointment of receiver. 109. Officers and stoclcholders 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. Effieot of this article. § 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 been returned wholly or partly unsatisfied, the judgment creditor may maintain an action to procure a judgment sequestrating the property of the corporation, and providing for a distribution thereof, as prescribed in section one hundred and twelve of this chapter. From § 1784, Code of Civil Procedure. Consolidators' Note. — " This article consists of Ch. 15, Tit. 2, Art. 3 of the Code of Civil Procedure, entitled 'Actions to procure the dissolution of a corporation and actions to enforce the individual liability of the officers or members of a corporation with or without a dissolution thereof.' It has been inserted in the General Cor- poration Law without change. One or two provisions have been inserted in this article from other statutes " • • *. §§ 101-103 GENERAL CORPORATION LAW 65 § 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 busi- ness 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 be- comes insolvent or unable to pay its debts, or has violated any provision of the act, by or under which it was in- corporated, or of any other act binding upon it. From § 1785, Code of Civil Procedure. § i02i 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. From § 1786, Code of Civil Procedure. § 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 authorizing the action to be maintained, grant an injunction order, re- 5 66 GENERAL CORPORATION LAW § 104 Straining the corporation, and its trustees, directors, managers and other officers, from collecting or receiving 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 pen- dency of the action; except by express permission of the court. Where the action is brought to procure the dis- solution of the corporation, the injunction may also re- strain the corporation, and its trustees, directors, mana- gers and other officers, from exercising any of its cor- porate rights, privileges, or franchises, during the pen- dency 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. From § 1787, Code of Civil Procedure. § 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, demands, and other property of -the corporation ; to preserve the property, and the proceeds of the debts and demands col- lected; to sell or otherwise dispose of the property as directed by the court; to collect, receive and preserve the proceeds thereof; and to maintain any action or special proceeding, for either of those purposes. He must qualify as preswibed by law for the qualification of a per- manent receiver. Unless additional powers are specially conferred upon him, as prescribed in the next section, a temporary receiver has only the powers specified in this section, and those which are incidental to the exer- cise thereof. From § 1788, part, Code of Civil Procedure. For remainder of that section, see § 106 following. §§ 105-107 GENERAL CORPORATION LAW 67 § 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 control 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 author- ity, 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. From § 1789, Code of Civil Procedure. § 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. Amended by L. 1909, Ch. 240, § 33. From I 1788, part, Code of Civil Procedure. For remainder of that 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 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, 68 GENERAL CORPORATION LAW §§ 108-110 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 appoint 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 continued by such successor as if no removal had been made. Such receiver shall also be liable to pay to the party interested, interest at the rate of ten per centum per annum on all moneys due to such party and retained by him more than one day after such demand made as aforesaid. Derivation.— E. 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. Officers and stockholders 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 of 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 by a supplemental complaint; and their liability may be declared and enforced by the judgment in the action. From § 1790, Code of Civil Procedure. § no. Separate action may be brought against officers and stockholders. — Where the stockholders, directors. §§ 111-113 GENERAL CORPORATION LAW 69 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, de- claring, apportioning and enforcing their liability. From § 1791, Code of Civil Procedure. 4 § 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. From § 1792, Code of Civil Procedure. § 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. From § 1793, Code of Civil Procedure. § 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 70 GENERAL CORPORATION LAW §§ 114, 115 shares of stock held by him, or so much thereof as is necessary to satisfy the debts of the corporation. From § 1794, Code of Civil Procedure. § 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. From § 1795, Code of Civil Procedure. § 115. Elffect 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. From § 1796, Code of Civil Procedure. 'So in original. §§ 130, 131 GENERAL CORPORATION LAW 71 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. 13C. 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 in- corporated. From § 1797, CodQ of Civil Procedure. § 131. Action by attomey^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 I. 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. Consolidators' Note. — "This article consists of Ch. 15, Tit. 2, Art. 4 of the Code of Civil Procedure, which has been transferred to the General Corporation Law as Art. 7, without change in substance." 72 GENERAL CORPORATION LAW §§ 132-134 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, 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. From § 1798, Code of Civil Procedure. § 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.- From § 1799, Code of Civil Procedure. § 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 without pro- curing an order, as prescribed in section nine hundred and seventy of the code of civil procedure.' From § 1800, 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'established 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 ap- pointment of a receiver, the taking of an account, and the distribution of the property of the corporation, among its §§ 135, 136 GENERAL CORPORATION LAW 73 creditors and stockholders, as where a corporation is dis- solved upon its voluntary application, as prescribed in article nine of this chapter. From § 1801, Code of Civil Procedure. § 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- pora,tion, and any or all of its directors, trustees and other officers, from exercising any of its corporate rights, privi- leges, or franchises; or from exercising certain of its cor- porate rights, privileges, or franchises, specified in the in- junction order; or from exercising any franchise, liberty, or privilege, or transacting any business, not allowed by law. Such an injunction is deemed one of those specified in section six hundred and threfe of the code of civil pro- cedure, and alNffie provisions of title second of chapter seventh of the code of civil procedure applicable to an in- junction specified in that section, apply to an injunction granted as prescribed in this section, except that it can be granted only by the court. From § 1802, Code of Civil Procedure. § 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 forthwith filed in the office of the secretary of state; who must cause a notice of the substance and effect of the judg- ment, to be published, for four weeks, in a newspaper printed in the county, wherein the principal place of busi- ness of the corporation was located. From § 1803, Code of Civil Procedure. Consolidators' Note.— " §§ 136, 179, 250, 269, 275. The references in these sections to the ' State paper ' and the ' newspaper printed at Albany, in which legal notices are required to be published,' have been omitted for the reason that the State paper referred to has been abolished and there is no newspaper in Albany in which legal notices generally are required to be published. See Executive Law, § 83, which abolishes the 'old' S{ate paper." 74 GENERAL CORPORATION LAW § 150 ARTICLE 8 Action to Dissolve Moneyed Corporation Section 150. Temporary injunction and receiver in actioa 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 reojiver. 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 cor- poration upon the information of either the superintend- ent of insurance, or the superiiitendent of banks, for the dissolution or sequestration of the property or annulment 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 corporation to continue doing business, the supreme court may, on his application, in a case provided by law, appoint a receiver thereof, and may on such appointment grant an injunc- Consolidators' Note. — " This article embraces L. 1902, CIi. 60, entitled 'An act to simplify the procedure, facilitate the settlement and reduce the expense of receivers on dissolution of a monied cor- poration,' and L. 1904, Ch. 754, entitled 'An act to simplify the settlement of accounts of receivers on dissolution of a monied cor- poration.' By its language, L. 1902, Ch. 60, superseded and repealed all provisions 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 mentioned in juxtaposition with other provisions applicable to the subject." §§ 151, 152 GENERAL CORPORATION LAW 75 tion 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 appli- cation. 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 corpora- tion so proceeded against show cause at a term of the court to be held not more than thirty days thereafter, 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 permanent receiver of such corporation, and the injuction shall be continued during the pendency of the litigation. Such receiver shall, un- less otherwise ordered by the court, continue to act as such up to and after final judgment, and until the affairs of the corporation shall be finally settled and its property distributed by him according to law. The bond , to be given by the receiver on his appointment shall be fixed at such sum and so conditioned that it shall continue in force and effect until the final discharge of such receiver, including any liability which may be incurred by said re- ceiver by virtue of his appointment as such in the final judgment, in case he shall be so named therein. Derivation.— L. 1902, 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 corporation. In case the corporation is subject to the banking law, two disinterested appraisers shall be appointed by the superin- tendent of banks to aid in this duty, and in case the cor- poration is subject to the insurance law, such appraisers shall be appointed by the , superintendent of insurance. 76 GENERAL CORPORATION LAW §§ 153, 154 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 completion thereof. Such appraisers shall receive as compensation 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 grpunds as in the like case of an executor. Derivation.- L. 1902, Ch. 60, § 3. For remainder of § 3, see § 153 following. § 153. Conversion of assets into cash by receiver. — The receiver shall proceed, immediately upon his appoint- ment, to convert the assets of the corporation into cash. Derivation.— L. 1902, Ch. 60, § 3. For remainder of § 3, see § 152 above. § 154. Etnployment of counsel by receiver. — It shall not be lawful for any receiver to pay to any attorney or counsel" any costs, fees or allowance vintil the amount thereof shall have been stated to the special tenn, as ex- penses incurrail by such receiver and shall have been ap- proved by that court by an order duly entered. Any such order shall be the subject of review by the appellate 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 GENERAL CORPORATION LAW 77 § 155. Notice to creditors by receiver. — i. Within thirty days after a receiver qualifies he shall cause to b.e 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 corpora- tion has issued and outstanding at the time of the appoint- ment 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 suc- cessive 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 outstanding policies of insurance or agree- ments of indemnity or guaranty, to exhibit and prove their claim, within sixty days ; and, in default of so doing, shall be precluded from all benefit of the judgment and from any and all distribution which may be made there- under, except that the creditor or holder or owner of any policy or agreement of indemnity or, guaranty, who shall exhibit 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 re- ceived, and, shall have the same rights and benefits thereon, so far as the assets of such corporation then re- maining undistributed may be applied, as if his claim had 78 GENERAL CORPORATION LAW §§ 156,157 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 rejection 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 expiration 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 de- termine as to the allowance thereof. Claims allowed by the receiver shall be subject to objection upon the final settlement and their validity may be determined as the validity of claims against estates are determined 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 ac- counts and an order for distribution at any time after the expiration of six months, and shall so apply within eigh- teen months after qualifying as such. The attorney-gen- eral or any creditor, or party interested, may apply for an order that the receiver show cause why an accounting and distributicti should 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 ex- piration 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 Dy a party other than the receiver, the court shall direct the receiver to take steps to account with all convenient § 158 GENERAL CORPOR.'VTION LAW 79 speed. The receiver is not required or authorized to file any account, except as herein provided, except by special order of the court. Derivation.— L. 1902, Ch. 60, § 6. § 158. Notice of account and accounting by receiver. — I. The receiver shall file his account, together with a statement of the items and amounts claimed by his coun- sel, 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 settle- ment and accounting, and the attorney-general shall serve upon the attorney for the receiver any objections he may have to the account, or to the statement as to the items and amounts claimed by counsel for compensation, ap- pearing in such account 9n or before such hearing. The receiver shall also within ten days after the filing of the account, mail to each creditor of the corporation 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 at- torney-general, no referee shall be appointed to pass thereon, but the same shall be examined and settled by the court. In case objection is made a referee may be appointed to take the testimony and report the same to the court. 2. Prior to the final settlement of accounts of a receiver of any moneyed corporation, having in force, at the time of his appointment, outstanding policies of insurance or agreements of indemnity oi" guaranty, exceeding two thousand in number, said receiver shall give notice to all of the creditors and to the owners or holders of said poli- cies of insurance or agreements of indemnity or guaranty, issued or entered into by such insolvent corporation, by publication of a notice published at least twice a week, for three successive weeks, immediately preceding the making of an application for a final settlement of his ac- counts and for an order for the distribution of the assets in his hands. 'Said notice shall state the fact that an ap- 80 GENERAL CORPORATION LAW § 159 plication for a final settlement of his accounts and for an order for the distribution of the assets in hand will be made, and shall also state the time and place, when and where the application will be made. Upon the hearing of such application and motion, the court shall, unless ob- jection is made to the items of the account by a creditor or by a holder or owner of a policy of insurance or agree- ment of indemnity or guaranty, or on behalf of the attor- ney-general, examine and settle the said accounts, and make an order for the settlement, adjustment and distri- bution 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 corporations heretofore or hereafter appointed. Amended by L. 1909, Ch. 240, § 35. Subd. 1 is derived from L. 1902, Ch.'OO, § 8. Subd. 2 is derived from L. 1904, Ch. 754, §§ 2 and 4. § iSQt 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 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^he 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 neces^ry to be retained for the purpose of ad- ministering the trust and making payment upon contested claims, and upon such claims as may thereafter be pre- sented 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 §§ 160, 161 GENERAL CORPORATION LAW 81 counsel to act on his behalf, the court may, upon the ac- counting, 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 re- ceiver. — 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 indemnity 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. Applic:ation of article. — Except as provided in sections one hundred and fifty-five, one hundred and fifty- eighty subdivision two, and one hundred and sixty of this article, this article shall apply to all actions for the ap- pointment of receivers of moneyed corporations brought by the attorney-general, and to all receivers of such cor- porations heretofore or hereafter appointed, and to the settlement and adjustment of their accounts and distri- bution of assets in their hands, and all proceedings with reference thereto hereafter to be taken, and shall super- sede and repeal all provisions of law inconsistent here- with, so far as the same relate to actions for the seques- tration, annulment on dissolution of moneyed corpora- tions. As to all other corporations and as to matters not affected by this article, provisions of law heretofore exist- ing shall remain in full force and effect. Derivation.— L. 1902, Ch. 60, § 9. 6 82 GENERAL CORPORATION LAW § 170 ARTICLE 9 Ptoceedings 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. Corporations 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. i ■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 ofScer or stockholder 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 oflScers, 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 Consolidators' Note. — " This article consists of Ch. 17, Tit. II, of the Code of CSvil Procedure, entitled 'Proceedings for the volun- tary dissolution of a corporation.' It has been inserted in this chapter as Art. 9 without change but with the addition of one or two provisions not now found in the Code of Civil Procedure, but applicable to the subject." §§ 171, 172 GENERAL CORPORATION LAW 83 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 if, for any reason, they deem it beneficial to the interests of the stockholders that the corporation should be dissolved, they may present a petition to the supreme court praying for a final order dissolving the corporation, as prescribed in this article. From § 2419, Code of Civil Procedure. See 201 N. Y. 420. § 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. From § 2420, Code of Civil Procedure. For remainder of that section, see §§ 172 and 173 following. § 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 trustees or directors who are equally divided respecting the manage- ment of its affairs, or if the stock of such corporation is equally divided into not more than two independent ownerships or interests, or if the entire stock of the cor- poration 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 aj prescribed in section one hundred and seventy of this chapter. From § 2420, Code of Civil Procedure. For remainder of that section, see § 171 above, and § 173 following. 84 GENERAL CORPORATION LAW §§ 173, 174 § 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 rail- road, or for aiding in the construction thereof, or for carry- ing on the business of banking or insurance, or intended to derive a profit from the loan or use of money. From § 2420, Code of Civil Procedure. For remainder of that section, see §§ 171 and 172 above. § 174. Contents of petition. — The petition must show that the case is one of those specified in sections one hun- dred 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 peti- tion, containing the following matters, as far as the peti- tioner or petitioners know, or have the means of know- ing the same : 1. 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 en- gagement was made, and to whom it is to be performed, 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 property of the corporation, ty judgment, mortgage, pledge, or otherwise. §§ 175-178 GENERAL CORPORATION LAW 85 7. A full, just, and true account of the capital stock of the corporation, 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. From § 2421, .Code. of Civil Procedure. § 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 peti- tion and schedule. From § 2422, Code of Civil Procedure. § 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. From § 2423, Code of Civil Procedure. For remainder of that section, see §§ 178, 181, 182 and 184 following. § 177. Corporations without stockholders. — In the case of corporations affected by the provisions of this article and 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. From § 2431, Code of Civil Procedure. For remainder of that section, see § 195 following. §' 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 86 GENERAL CORPORATION LAW §§ 179-181 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. From § 2423, Code of Civil Procedure. For remainder of that section, see §§ 176, 181, 182 and 184 of this article. § 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 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. From § 2424, Code of Civil Procedure. See Consolidators' Note under § 136, Greneral Corporation Law. § 180. Service of order to show cause. — A copy of the order must also be served upon each of the persons, speci- fied 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 per- sonally, 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 appointed, in the post- ofifice, inclosed in a postpaid wrapper, addressed to the person to be served, at his residence, as stated in the schedule. g From § 2425, Code of Civil Procedure. § 181. Ehtering 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 corporation is located. From § 2423, Code of Civil Procedure. For remainder of that section, see §§ 176, 178, 182 ahd 184 of this article. §§ 182, 183 GENERAL CORPORATION LAW 87 § 182. Temporary receiver. — ^ If it shall be made to ap- pear to the satisfaction of the court that the corporation is insolvent, the court may at any stage of the proceeding before the final order, on motion of the petitioners on notice to the attorney-general, or on motion of the attor- ney-general on notice to the corporation, appoint a tem- porary receiver of the property of the corporation, which receiver shall have all the powers and be subject to all the duties that are defined as belonging to , temporary re- ceivers appointed in an action, in section one hundred and four of this chapter. The court may also, in its dis- cretion, at any stage in the proceeding after the appoint- ment 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 distri- bution among the creditors and stockholders, before final order in the proceedings, unless he is specially directed so to do by the court. From § 2423, Code of Civil Procedure. For remainder of that section, see §§ 176, 178, l&l and 184 of this article. § 183. Application for appointment of receiver. — Every application made for the appointment of a receiver of a corporation other than applications made by the at- torney-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. Oonsolidators' Note.— r " The statute of 1883, a portion of which, ia here consolidated, applies to proceedings for the voluntary disso- lution of a corporation. People v. Seneca Lake Grape & Wine Co., 52 Hun, 175. See also U. S. Trust Co. v. N. Y., W. S. & B. R. E. Co., 101 N. Y. 478; McNabb v. Porter Air Lighter Co., 44 App. Mv. 103; Matter of Broadway Insurance Co., 23 App. Div. 282. A more general provision relating' to applications for the appointment of receivers and otherwise will be found in § 314 under the head of provisions applicable to more than two of the actions or proceed- ings incorporated in this chapter." 88 GENERAL CORPORATION LAW §§ 184-188 § 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, re- straining the creditors of the corporation, from beginning any action against the said corporation for the recovery of a sum of money, or from taking any further proceed- ings in such an action theretofore commenced. Such in- junction shall have the same efifect and be subject to the same provisions of law as if each creditor upon whom it is served was named therein. From § 2423, Code of Civil Procedure. For remainder of that section, see §§ 176, 178, 181 and 182 of this article. § 185. Referee. — If a referee was not designated in the order to show cause, the court may, in its discretion, ap- point a referee when or after the order is returnable. From § 2426, Code of Civil Procedure. For remainder of that section, see §§ 186 and 187 of this article. § 186. Hearing. — At the time and place specified in the order, or at the time and place to which the hearing is ad- journed, the court, or the referee, must hear the allega- tions and proofs of the parties, and determine the facts. From § 2426, Code of Civil Procedure. "For remainder of that section, see §§ 185 and 187 of this article. § 187. Decision.^ The decision of the court, or the re- port of the referee, must be in writing, and must be made and filed with all convenient speed. It must contain a statement of the effects, credits, and other property, and of the debts a»d other engagements, of the corporation, and of all other matters, pertaining to its affairs. From § 2426, Code of Civil Procedure. For remainder of that section, see §§ 185 and 186 of this article. § 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 writ- §§ 189-191 GENERAL CORPORATION LAW 89 ten order of the judge, or of the referee. In that case, they must be returned with the decision or report. From i 2427, Code of Civil Procedure. For remainder of that section, see § 189 of this article. § 189. Amending papers.^— The court may, at any stage of the proceedings before final order, on the applica- tion 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 additional items, or by making the statements or inventory fuller and in greater detail than as originally filed, with the like effect as though said peti- tion and schedules had been originally presented and filed as amended. From § 2427, Code of Civil Procedure. For remainder of that section, see § 188 of this article. § 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 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 procedure 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 prescribes. From § 2428, Code of Civil Procedure. § 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 bene- ficial to the interests of the stockholders and not in- 90 GENERAL CORPORATION LAW §§ 192-194 jurious 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 objec- tion by creditors, dispense with a receiver and provide in the final order for the distribution of the assets. Upon the entry of the order the corporation is dissolved. A re- ceiver 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. From § 2429, Code of CSvil Procedure. For remainder of that section, see §§ 192 and 194 of this article. § ig2. Appointment of director, trustee or other officer or stockholder as receiver. — The court may, in its dis- cretion, appoinj; a director, trustee, or other officer, or a stockholder of the corporation, a receiver of its property. From I 2429, Code of Civil Procedure. For remainder of that section, see §§ 191 and 194 o^ this article. § 193. Certain sales, transfers and judgments void. — A sale, assignment, mortgage, conveyance, or other trans- fer, 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 ac- ceptance of an offer, is absolutely void, as against the receiver appointed in the special proceeding, and as against the creditors of the corporation. From § 2430, Code of Civil Procedure. § 194. Omission, defect or default of receiver. — In a proceeding for the voluntary dissolution of a corporation, the court may, in the furtherance o^ justice, upon notice to the attorney-general, and the attorney-general not ob- jecting, and upon such further notice to creditors or others interested as the court shall direct, which notice § 195 GENERAL CORPORATION LAW 91 may be made by mail upon all persons and corporations hot 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 giv- ing 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. From § 2429, Code of Civil Procedure. For remainder of that section, see §§ 191 and 192 of this article. § 195. Exception of certain corporations. — This article does not apply to an incorporated ' library society, to a religious corporation, or to a select school or academy, in- corporated by the regents of the university or by the legislature, or to a municipal or other political corpora- tion. From § 2431, Code of Civil Procedure. For remainder of that section, see § 177 of this article. 92 GENERAL CORPORATION LAW § 220 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 tlie 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 § 61, Stock Corporation Law. Derivation.— L. 1904, Ch. 2S6, § 1; L. 1908, Ch. 457, § 1. CoDsolidators' Note. — "These proceedings for the voluntary dissolution of stock corporations have been transferred to the General Corporation Law from the Stock Corporation Law in order to bring together so far as possible all proceedings and actions relating to the winding up of a corporation." § 221 GENERAL CORPORi\.TION LAW 93 § 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 knowji 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 signed by- such stockholders executing such consent by • 94 GENERAL CORPORATION LAW § 221 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 ofificers duly verified by the secretary or treasurer or president of said corpora- tion, 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 which 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 di- rectors 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 directors 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 required in order to adjust and wind up its business and affairs, and may sue and be sued for the purpose of enforcing such debts or obligations, until its business and affairs are fully adjusted and wonnd up. 4. After paying or adequately providing for the debts and obligations of the corporation the directors may, with § 221 GENERAL CORPORATION LAW 95 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 business 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, sjiall apply to the supreme court in the manner provided by section seven- teen 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 appraisal the stockholders consent- ing to such sale, or some of them, shall pay to such ob- jecting stockholder or deposit for his account, in the man- ner directed by the court, the amount of such appraisal and upon such payment or deposit the interest of such ob- jecting stockholder shall vest in the person or persons making such payment or deposit. Former § 57, Stock Corporation Law, altered. Derivation.— L. 1896, C!h. 932, § 1; L. 1900, Ch. 760, § 1. See 134 App. Div. 394; 133 App. Div. 10. 96 GENERAL CORPORATION LAW §§ 225, 226 ARTICLE 10a* 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 in- creasing the same. Added by L. 1909, Ch. 240, § 40. From § 715, Code of Civil Procedure, part. § 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. 1909, Ch. 240, § 40. ■ From S 715, Code of Civil Procedure, part. ' Article 10a was added to the Consolidated Laws by L. 1909, Ch. 240, § 40. § 227 GENERAL CORPORATION LAW 97 § 227. Notice to sureties upon accounting. — A re- ceiver who, having executed and filed a bond as provided for in section two hundred and twenty-five or section 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 intention to present his accounts, not less than eight days before the day set for the hearing on said accounting. The same notice must be given to such surety or sureties where the ac- counting 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 allowed, 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, (Jh. 240, § 40. From § 715, Code of Ciril Procedure, part. 7 98 GENERAL CORPORATION UiVf ARTICLE 11 Powers, Duties and Liabilities of Receivers of , Corporation Section 230. Application of this article. 231. Receiver 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. Rc(1j|ntion of funds for subsisting contracts and pend- ing suits. 258. Payment of debts not due. 259. Allowance of set-ofifs. 260. Penalties recovered by receiver 261. Order of payment by receiver. 282. Failure to file claim before first di^dend. 263. Second dividend by receiver. 264. iSoirpluB to stockholders. 265. Disposition of moneys retained by receivers for suits. GENERAL CORPORATION LAW 99 Section 266. Duty of receiver as to unclaimed dividend. ■267. Effect of failure to iile claim before second dividend. 268. Final accounting by receiver. 269. Notice of final accounting. 270. Hearing on final accounting. 271. Eeference of final account. 272. Further accounting. 273. 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 vol- untary dissolution. Gonsolidators' Note. — " This article relates to the powers, duties and liabilities of receivers of corporations and unless other- wise provided in specific sections it is made applicable to receivers appointed under Art. 6, relating to actions for sequestration, actions for dissolution and actions to enforce the individual liability of officers and members of corporations, and Art. 9, relating to pro- ceedings for the voluntary dissolution of a corporation. The article consists of the live matter in §§ 66-89 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 applicable by L. 1880, Ch. 245', § 1, subd. 3, p. 368. Section 42 of the Revised Statutes being made applicable to permanent receivers appointed in actions for sequestration, ac- tions for dissolution, etc.. under § 1788 of the Code of Civil Pro- cedure and §§ 66 to 89, both inclusive, being made applicable to receivers appointed in proceedings for the voluntary dissolution of 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 according 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 sepa- rate article where by reference they have been made applicable to such actions and proceedings as they are now applicable to by law." 100 GENERAL CORPORATION LAW §§ 230-234 § 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 be vested with all the property, real and personal, of the corporation, from the time of their having filed the security required by law. Amended L. 1909, Ch. 240, § 41. 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- iferred 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, securities or property* Derivation.— L. 1884, Ch. 286, 8 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 penalty, as the court shall direct, conditioned for the faithful dis- charge of the duties of their appointment, and for the due accounting for all moneys received by them. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 66, part. §§ 235-239 GENERAL CORPORATION LAW 101 § 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. § 236. Authority vsrhere 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 exercised by any two of them. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 3. § 237. Surviving receivers. — The survivor or sur- vivors of any receivers shall have all the powers and rights given to receivers. All property in the hands of any receiver at the time of his death, removal or in- capacity, shall be delivered to the remg^ning 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. § 238. Oath of receiver, — Before proceeding to the dis- charge of any of their duties, all such receivers shall take and subscribe an oath, that they will well and truly ex- ecute the trust by their appointment reposed in them, ac- cording to the best of their skill and understanding; which oath shall be filed with the officer or court, that appointed them. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 5. § 239. General povirers of receivers. — The said re- ceivers shall have power: I. To sue in their own names or otherwise, and recover all the property, debts and things in action, belonging or due to such corporation in the same manner and with the like effect as such corporation might or could have done 102 GENERAL CORPORATION LAW § 239 if no receivers had been appointed; and no set-oflf shall be allowed in any such suit, for any debt, unless it was owing to such creditor, by such corporation before the appointment of the receiver of such corporation ; notwith- standing the notice to creditors the receivers may sue for and recover, any property or efifects 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, for attach- ing and keeping the same, to be allowed by the court having jurisdiction; 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 gurchaser, 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; § 240 GENERAL CORPORATION LAW 103 8. To settle all matters and accounts between such cor- poration 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. 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. PoweiN of receiver to institute proceedings to re- cover assets. — Whenever any receiver of a domestifc 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 judgment or order in the action or special proceeding in which such appointment was made, and shall, by his own verified petition, afiidavit 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 corporation, or any other person whomsoever, has embezzled or con- cealed, 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 con- cerning 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 pur- pose, and to submit to an examination concerning such embezzlement, concealment, withholding, possession, control or wrongful disposition of such property; and at 104 GENERAL CORPORATION LAW § 240 the time of making such order or at any time thereafter, the court may, in its discretion, 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 answering any question on the ground that his answer might tend to convict him of a criminal offense; but his testimony 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 pen- alties upon failure to appear and testify in obedience to such an order as are provided by law in the case of wit- nesses who fail to obey a subpoena to appear and testify in an action. Any person appearing for examination 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 con- cerning 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 ex- tent 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 filed in the office of the clerk of the county where the action is § 241 GENERAL CORPORATION LAW 105 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 pos- session 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 sub- ject to the further order of the court in relation thereto ; and otherwise, the court may, at the conclusion 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- 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 agreement, then the receivers or the other party to the controversy, provided no action at law is pending arising out of any such debts or demands, may serve a notice of their. in- tention to apply to any judge of the supreme court at chambers, residing in the same district with said re- ceivers, for the appointment of one or more referees, specifying the time and place when such application 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 ot 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 106 GENERAL CORPORATION LAW § 242 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 referees in the same manner, and be read before them on a hearing, in like manner as testimony taken on com- mission before justices of the peace. The ofiScer 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 re- ceivers in the oifice of a clerk of the supreme court, and an order shall thereupon be entered by such clerk in vaca- tion or in term, appointing the persons so selected to de- termine the controversy. 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 su- preme 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.— R. 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 pay- ment by such receiver to his counsel on account of ser- vices 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 counsel shall not be made for a longer period than eighteen §§ 243, 244 GENERAL CORPORATION LAW 107 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 policy- holder or depositor, by permission of the court, such policy-holder or depositor shall defray the legal expenses thereof, and no allowance shall be made for costs or fees to any attorney of such policy-holder or depositor. It shall be unlawful for receivers of an insurance, 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 hundred and forty-nine of this chapter, as expenses incurred, 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 re- view by the appellate division and the court of appeals on an appeal taken therefrom by any party aggrieved thereby. Derivation. — " If the receiver " to " In case of the intervention," L. 1883, Ch. 378, § 2-a, added by L. 1906, Ch. 349, § 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. § 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 dissolution of • a corporation, may take and hold real property, upon such trusts and for such purposes as the court directs, subject to the direction of the court, from time to time, respect- ing the disposition thereof. Derivation. — Section 716, Code of Civil Procedure. Consolidators' Note. — " This section is general in its application and therefore has been inserted. It will be preserved also in the Code of Civil Procedure as it applies to other subjects than corpora- tions." § 244. Power of receiver to recover stock subscriptions. — If there shall be any sum remaining due upon any 108 GENERAL CORPORATION LAW §§ 245-248 share of stock subscribed in such corporation, the receiver 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 pro- ceeding for the recovery of such sum, without the con- sent 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. § 246. Duty of receiver as to private sales. — A re- ceiver duly appointed in this state by and pursuant to a judgment 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 con- vey the property, whether real or personal, of the cor- poration of which he is the receiver, at private sale, upon such terms and conditions as the court rr.ay 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 in- terested therein, shall be at liberty, at all reasonable times, to ha-vjp 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 § 249 GENERAL CORPORATION LAW 109 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 super- intendent of banks a report, verified by oath, in such forrn as the superintendent may prescribe, showing 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 to serve a copy thereof on the attorney-general, as required by this sec- tion the attorney-general may make a motion in the su- preme court for an order to compel the making and filing and serving a copy on him of such report, or for the re- moval of such receiver from his office. 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 count, 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 receiver of an insurance company, with the superintendent of in- surance; and in each case with the attorney-general, an account exhibiting in detail the receipts of his trust, and the expenses paid and incurred therein during the pre- ceding six months. Of the intention to present such ac- count, 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 writing; and the at- torney-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. 110 GENERAL CORPORATION LAW §§ 250-252 § 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 CQunty where the principal place of conducting the business of such cor- 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 owing 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 R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 8. Paragraph 4 is derived from K. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 70. See Consolidators' Note under § 136, General Corporation Law. ' § 251. Delivery of property and pajmient of debts to receiver after notice. — After the first, publication of the notice of the appointment of receivers, every person hav- iiig' possession of any property belonging to such cor- poration, and ^ery 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 person 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 de- §§ 253-255 GENERAL CORPORATION LAW 111 liver 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, or double the value of such property so concealed; which penalties may be recovered by the receivers. Derivation.— R. S., Pt. 2, Cli. 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 man- ner, as hereinbefore directed respecting the publication 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," K. 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. Derivation. — "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. t § 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. See § 3320, Code of Civil Procedure. 112, GENERAL CORPORATION LAW §§ 256-258 § 256. Refunding consideration of subsisting con- tracts. — If there shall be any open and subsisting en- 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 of the party holding such engagement, cancel and discharge the same, by refunding to such party the premium or con- sideration 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 engage- ment, as the whole premium bore to the whole term of such risk; and upon such amount being paid by such re- ceivers to the person holding or being the legal owner of such engagement, it shall be deemed canceled and dis- charged as against such receivers. Derivation.— E. 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 sufiScient 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 demand, the receivers may retain the proportion which would be- long to such demand if established, and the necessary costs and proceedings, in their hands, to be applied ac- cording 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. Pajpnent of debts not due. — Every person to whom a corporation shall be indebted on a' valuable con- sideration, for 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 re- bate 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, { 35. §§ 259-261 GENERAL CORPORATION LAW 113 § 259. Allowance of set-ofFs. — Where mutual credit has been given by any corporation, and any other person, or mutual debts have subsisted between such corporation 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-joff 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 E. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 36. Second paragraph from E. 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. S, 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- tion, to the extent of the value of the real estate on which they shall respectively be liens. 8 114 GENERAL CORPORATION LAW §§ 262, 263 4. All Other creditors of such corporation, in proportion to their respective demands, without giving any prefer- ence to debts due on specialties. Derivation.— First clause to colon ( :), R. 8., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 79, part; subd. 1, "all debts due by such corporation to the United States and," E. 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, E. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, § 34; subds. 3 and 4, E. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 79, part. § 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.— E. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 81, part. § 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 hinds, among the creditors entitled thereto; of 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 of 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 cred- itors, as herein provided. Derivation.— First paragraph, E. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 80. Second paragraph, E. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 81, part. §§ 264-267 GEXERAL CORPORATION LAW 115 § 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 proportion to the respective amounts paid in by them, severally, on their shares of stock. Derivation.— E. S., Pt. 3, CIi. 8, Tit. 4, Art. 3, § 83. § 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 ex- penses and costs, among the creditors and stockholders of the corporation, in the same manner as herein directed in respect to a second dividend. Derivation.— E. S., Pt.-3, Ch. 8, Tit. 4, Art. 3, § 84. -§ 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.— R. S.; Pt. 2, Ch. 5, Tit. 1, Art. 8, § 42. § 267. Effect of failure to file claim before second dividend. — 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 cred- itors 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.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 82. 116 GENERAL CORPORATION LAW §§ 268-270 § 268. Final accounting by receiver. — A receiver shall apply within one year after qualif);ing as such for a final settlement of his accounts and an order for distribution, 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 interested, 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 quali- fies ; and it shall be the duty of the attorney-general after the expiration of eighteen months from the time the re- ceiver 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 appli- cation by a party other than the receiver the court shall direct the receiver to take steps to account with all con- venient speed. The receiver is not required or authorized to file any account, except as herein provided, except by special order of the court. Derivation. — Section 2431b, Code of Civil Procedure. § 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 plaop'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 fwenty-seven of this chapter. Amended by L. 1909, Ch. 240, § 42. Derivation.— R. S., Pt. 3, Oh. 8, Tit. 4, Art. 3, § 87. See note under § 136, General Corporation Law. § 270. Hearing on final accounting. — ■ Upon the coming in of such report, the court shall hear the allegations of all concerned therein, and shall allow or disallow such ac- §§ 271-275 GENERAL CORPORATION LAW 117 count, and decree the same to be final and conclusive upon all the creditors of such corporation, upon all per- sons who have claims against it, upon any open or sub- sisting engagement, and upon all the stockholders of such corporation. Derivation.— R. 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. Derivation.— R. S., Pt. 3, COi. 8, Tit. 4, Art. 3, § 88. § 272. Further accounting. — Such receivers shall also account from time to time in the same manner, and with 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.— E. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 89, part. § 273. Removal of receiver. — Such receivers may be removed by the court. Derivation.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 85, part. § 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. § 275. Renunciation by receiver. — Any receiver who sliall 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, «nd particularly of the property, moneys and effects re- 118 GENERAL CORPORATION LAW § 275 ceived by him ; of all payments made, whether to credr itors 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 situation of the same. To such account shall be annexed the affidavit of the receiver, that the 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 property of the corporation, in respect to- which such receiver 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 per- mitted 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 notice 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 execution of the duties of his appointment, and that such duties car? be executed by another receiver, without injury to the property of the corporation, or to the cred- itors; and if no good cause to the contrary appear, suth court shall grant an order, allowing such receiver to re- nounce 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- §§ 276-278 GENERAL CORPORATION LAW 119 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 effecting such re- nunciation shall be paid by the receiver making the appli- cation. Derivation.— R. S., Pt. 2, Ch. 5, Tit. 1, Art. 8, §§ 49, 51, 52, 53, 54, 55, 56, 60, 62. See note under § 136, Grcneral Corporation Law. § 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.— R. S., Pt. 3, Ch. 8, Tit. 4, Art. 3, § 85, part. § 277. Commissions and expenses of receiver in volun- tary dissolution. — A receiver appointed pursuant to article nine is entitled, in addition to his necessary expenses, to commissions upon the sums received and disbursed by him as the court by which or the judge by whom he is appointed allows, as follows: On the first twenty thou- sand 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 exceeding one per centum ; but in case the commissions of a receiver so com- puted shall not amount to one hundred dollars, said court or judge may in his or its discretion allow said receiver sach a sum not exceeding one hundred dollars for his commissions as shall be commensurate with the services rendered by said receiver. !Prom § 2431a, Code of Civil Procedure. § 278. Commissions Jind 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 disbursed ty him, as the court by which or the judge by whom he is 120 GENERAL CORPORATION LAW § 278 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 dol- lars, nor for any period less than a year more than at that rate. Upon final accounting, the court may make an ad- ditional allowance to such receiver, not exceeding two and one-half per centum upon the sums received and dis- bursed by him, if the court is satisfied that he has per- formed services that fairly entitle him to such additional allowance. Where more than one receiver shall be ap- pointed, the compensation herein provided shall be di- vided between said receivers. Derivation.— L. 1883, Ch. 37-8, § 2; L. 1886, Ch. 275', § 1; L. 1901, Ch. 506, § 1; L. 1906, Ch. 349, § 1. § 300 GENERAL CORPORATION LAW 121 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 suspenaion or removaj 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 anid to facilitate closing affairs of receivership. 312. Service of papers upon attorney -general. 313. Designation of deposi'tories of funds in order appoint- ing receiver. 314. Application to the court in certain actions and pro- ceedings. 315. 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, Consolidators' Note. — "This article contains without chajige the provisions in Oh. 15, Tit. 2, Art. 5, of the Code of Civil Procedure entitled 'Provisions applicable to two or more of the actions specified in this' title,' and in addition to the provisions of the Code of Civil Procedure certain other statutory provisions of too general a nature to be inserted vinder any of the preceding articles." • So in original. 122 GENERAL CORPORATION LAW §§ 301-303 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. From § 1804, Code of Civil Procedure. § 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 corporation 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. From i 1805, Code iyi Civil Procedure. § 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, restraining 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 proceed- ings in such actions, theretofore commenced. Such an injunction has the same effect, and, except as otherwise expressly prescribed in this section, is subject 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. From § 1806, Code of Civil Procedure. § 303- Creditors of corporation may be brought in to prove their claims in certain actions. — In such an action. § 304 GENERAL CORPORATION LAW 123 the court may, at any stage of the action, before or after final judgment, make an order requiring all the creditors pf 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 order as the court directs; and that the creditors, who make de- fault in so doing, shall be precluded from all benefit of the judgment, and from any distribution which may be made thereunder, except as hereinafter provided. No.tice of the order must be given by publication, in such newspapers, and for such a length of time, as the court directs. Not- withstanding such order any such creditor who shall ex- hibit 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 distri- bution 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 corpora- tion then remaining undistributed may render possible, as if his claim had been exhibited and proved within the time limited by such order. From § 1807, Cbde ai Civil Procedure. § 304. When attorney-general must bimg 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 prescribed in articles fifth, sixth or seventh of the chapter, except section one hundred and thirty of this fchapter, he must bring an action accord- ingly, 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 attor- jiey-general in behalf of the people, if a creditor, stock- holder, 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 124 GENERAL CORPORATION LAW §§ 305, 306 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 proceiiure applies thereto, and to the action brought in pursuance thereof. From § 1808, Code of Civil Piwedure. § 305. Requisites of injunction against corporations in certain cases. — An injunction order, suspending the gen- eral and ordinary business of a corporation, or suspending 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 corporation, or to the trustee, director, or other officer enjoined. If such an in- junction order is made, otherwise than as prescribed in this section, it is void. From § 1809, Code of Civil Procedure. For remainder of that section, see § 1809, Oode of Civil Procedure. § 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 fol- lowing 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 payable, and after payment thereof was duly demanded of the proper offi(»er of the corporation and where either the in- come of the property is specifically mortgaged, or the property itself is probably insufficient to pay the mort- gage 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 corporation. ' §§ 307-309 GENERAL CORPORATION LAW 125 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, otherwise 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. From § 1810, Code of Civil Procedure. § 307- Judicial suspension or removal of officer of cor- poration. — A trustee, director, or other officer of a corpo- ration shall not be suspended of removed from office, by a court or judge, otherwise than by the final judgment of a competent "court, in an action brought by the attorney- general, as prescribed in section ninety of this chapter. From § 1811, Code of Civil Procedure. See 201 N. Y. 202. § 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, di- rector, or other officer thereof, where the corporation does business within the state, or has, within the state, a busi- ness agency or a fiscal agency, or an agency for the trans- fer of its stock. From § 1812, Code of Civil Procedure. For remainder of that section, see § 1812, Code of Civil Procedure. § 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- 126 GENERAL CORPORATION LAW §§ 310, 311 poration, as a stockholder thereof, by the name so appear- ing; but who is f misnamed, or dead, or is not Hable 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 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. From § 1813, Code of Civil Procedure. For remainder of that section, see § 1813, Code of Civil Procedure. § 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 rea- sonable 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-holders, de- positors or other beneficiaries interested in the proper and speedy distribution of the assets of any insolvent cor- poration will be subserved thereby, make a motion in the supreme court at a special term thereof, in any judicial district : §§ 312, 313 GENERAL CORPORATION LAW 127 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 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 man- ner as provided by law for the service of papers on attor- neys who have appeared in actions, whethtr the applica- tions but for this section would be ex parte or upon notice, .and no order or judgment granted shall vary in any ma- terial 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 judgment 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 corporation 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 expira- tion 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 cor- porations shall designate therein one or more places of 128 GENERAL CORPORATION LAW §§ 314-316 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 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 actions 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. 282, § 2. § 315. County wherein action may be brought by at- torney-general on behalf of the people. — An action or pro- ceeding brotCght by the attorney-general on behalf of the people of the state against any- corporation for the pur- pose 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. 282, § 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 ,^hall h-ave a preference upon the calendars 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 129 ARTICLE 13 Alteration and Repeal of Charter of Corporation Section 320. Alteration and repeal of charter. 321. 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 La-vr. De^vation.— L. 1895, Ch. 672, § 2. See 124 App. Biy. 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 corpo- ration law, but not in conflict with it, such provision in such other law shall be deemed to \>e in addition to the provision in this, chapter or in the stock corporation law relating to the same subject-matter, and both provisions shall, in such case, be applicable. Former § 33, General Corporation Law. Derivation.— L. 1892, Ch. 687, S 33. 9 130 GENERAL CORPORATION LAW §§ 330-332 ARTICLE 14 Laws Repealed; Construction; When to Take Effect Section 330. Laws repealed. 331. iConstruction. 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. 1892, Ch. 687, § 34. § 331. Construction. — Nothing in this chapter shall be construed to impair any right or liability which any exist- , ing 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 lia- bility, unless such special act is repealed by this chapter or the other general laws hereinbefore mentioned. Former § 36, General Corporation Law, altered. Derivation.— L. 1892, Ch. 687, I 36. § 332. W&en to take effect. — This chapter shall take effect immediately.* Schedule of Laws Repealed Revised Statutes . . Part i, chapter i8, All Revised Statutes . . Part 3, chapter 8, title 4, sections 2, 42 Revised Statues. . Part 3, chapter 8, title 4, article 3, §§ 66-91 Laws of Chapter Section 1811 67 All 1811 235.' All 1813 78 All • Became a law February 17, 1909. GENERAL CORPORATION LAW 131 •Law8 of Chapter Section 1815 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, Tin 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 ^^° All 1847 222 All 1847 270 All 1847 272 All 1847 287 All 1847 398 All 1847 404 AH 1847 405 All 1848 37- ■ AH 1848 40 All 1848 45 •• All 1848 140 AH 1848 259 AH 1848 265 AH 1848 360 AH 1849........ 250 AH 1849 362 • AH 1850 71 AH 132 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 AH 1852 372 All 1853 53 AH 1853 117 AH 1853 124 AH 1853 135 AH 1853 245 AH 1853 333 AH 1853 471 I' 2, 4 1853 481 AH - 1853 502 AH 1853 626 AH 1854 3 AH 1854 87 AH 1854 , 140 AH 1854 201 AH 1854 232 AU 1854 269 AH 1854 282 AH 1854 312 AH 1855 301 AH 1855 302 AH 1855 390 AH 1855 *. 478 AH 1855 485 AH 1855 495. ••••••• AH 18SS 546 AH 185s 559 AH 1856 6s AH 1857 29 AH 1857 83 AH GENERAL CORPORATION LAW 133 Laws of Chapter Section 1857 185: AH 1857. i 202 All 1857 ■ 262 All 1857 444 All 1857 546 AH 1857 558 All 1857 643 AH 1857 776 •... AH 1858 10 AH 1858 125 AH 1858 348 AH 1859 209 AH 1859 3" AH 1859 455 AH i860 116 AH i860 269 AH i860 ..... 523 AH 1861 149 ^'^ 1861 170 AH 1861 215 AH 1861 238 AH 1862 - 205 AH 1862 248 AH 1862 425 AH 1862 438 AH 1862 449 -^^1 1862 472 AH 1863 63 AH 1863.... .... 134 AH 1863 346 AH 1864 85 AH 1864....' 337 AH 1864 517 All 1864 582 AH 1865 234 AH 1865 246 AH 1865 307 AH 1865 691 AU 134 GENERAL CORPORATION LAW Laws of Chapter Section 1865 780 All 1866 73 All 1866 259 All 1866 322 All 1866 371 All 1866 697 All 1866 780 All 1866 799. ■•• All 1866 ^38 All 1867 12 All 1867 49 All 1867 248 All 1867 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 J870 13s All 1870 322 All 1870 443- •■ All 1870 568 All 1870 773 All GENERAL CORPORATION LAW 135 Laws of Chapter Sectio" 1871 95 All 1871 481 All i«7r 535- • All 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 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 136 GENERAL CORPORATION LAW Laws of Chapter Section 1874 240 All 1874 288 All 1874 430 -^11 1875 4 All 1875 58 AH 1875 88 All 1875 io8'. All 1875 "3 All 187s ,. 119 AH 1875 120 All 1875 159 All 1875 193 All 1875 256 All 187s 319 All 187s 343 2, 4, 8 1875 365 All 1875 445 All 187s 510 All 1875 586 All 187s 598 All 1875 606. All 1875 611 All 1876 77 All 1876 135 All 1876 190 All 1876 198 AH 1876 280 AH 1876 358 AH 1876 373 AH 1876 fiS AH 1876 435 AH 1876 , 446 AH 1877 103 AH 1877 158 AH 1877 164 AH ' 1877 171 , AH 1877 224 AH GENERAL CORPORATION LAW 137 Laws of Chapter Section 1877 266 All 1877 311 AH 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 AH 1879 393 All 1879 395 All 1879 413 All 1879 415 All 1879 441 All 1879 503 All 1879 50s All 1879 512 AH 1879 541 AH 1880 5 AH 1880 85 AH 1880 90 AH 1880........ 94... ...... AH 1880 113 , AH 1880 133 AH 1880 , 15s AH 138 GENERAL CORPORATION LAW Laws of Cha'pter Section 1880 182 All 1880 187 All 1880... 223 All 1880 225 All 1880 241 All 1880 245 I, 11 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 S37 All 1880 575 All 1880. 582 All 1880 583 All 1880 585 All 1881 22 All 1881 58 All 1881 yj All 1881 116 All 1881 117 All 1881 148 All 1881 *. 213 All 1881 232 All 1881 295 All 1881 296 All 1881 311 All 1881 313 All 1881 ........ 321 All 1881 337 All GENERAL CORPORATION LAW 139 Laws of Chapter Section i88j 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 ." 40s All 1883 46 All 1883 71 All 1883 102 All 1883 216 All 1S83 232 All 1883 237 All 1883 238 All 1883 240 All 1883 287 All 140 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 All 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 141 Laws of Chapter Section 1885 489 All 1885 498 All 1885 535 All 1885 540 All 1885........ 549 All 1886 6s All 1886 182 All 1886 271 All 1-886 275 All 1886 310 All 1886 321 All 1886... 322 All 1886 403 All 1886 415... All 1886 509 All 1886 551 All 1886 579 , All 1886 586 All 1886 592 All 1886 601 All 1886 60s All 1886 634 All 1886 642 All 1887 4SO All 1887 486 All 1887 S36 All 1887 570 All 1887 601...,...; All 1887 616 All 1887 622 All 1887 ;.. 724 All 1888 189 All 1888 306 , All 1888 313 All 1888 359 All 1888 394 All 1888 447 All 1888 4<52 All X42 GENERAL CORPORATION LAW Laws of Chapter Section 1888 513 All 1888 514 All 1888 549 All , 1888 560 All 1889 57 All 1889 76 All 1889 78 All 1889 236 All 1889 242,. All 1889 281 All 1889 332........ All 1889 369 All 1889 426 All 1889.. 519 All 1889 524 All 1889 531 All 1889 532 All 1889 564 All 1890 23 All 1890 98 All 1890 119 All 1890 193 All 1890 292 All 1890 416 All 1890 .... 421 AH 1890 483 All 1890 497 All 1890 505 All 1890 508 All 1890 543 All 1890 563 AH 1891 34 Part relating to appraisal of property of insolvent corporations 1891 38 AH 1891 57 AH 1891 287 AH 1892 2 AH GENERAL CORPORATION LAW 143 Laws of Chapter Section 1892 ig 4 1892 687 All except 37 1894 136 All 1894 400.. All 1895 672 All 1896 139 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 70s 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 144 GENERAL CORPORATION LAW Laws of Chapter Section 1908 457 All 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, 181 1 ; 1812, 1813, pt. relating to corpora- tions; 241 1 ; 241 2-241 4, pt. relating to corpora- tions; 2415, 2416, 2419- 2431b; 3390-3396, pt. re- lating to corporations STOCK CORPORATION LAW Laws of 1909, 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 (§§ 5-18). 3. Directors and officers (§J 25-35). 4. Stock and stocktiolders (§§ 50-70). 5. Laws repealed; when to take effect (§§ SO, 81). ARTICLE 1 Short Title Section 1. Short title. § I. Short title. — This chapter shall be known as the " Stock Corporation Law." Derivation.— L. 1890, Oh. 564, § 1; L. 1892, Ch. 688, § 1. 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. 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. • * So in original. 10 [1451 146 ' STOCK CORPORATION LAW §§ 5, 6 Section 12. Municipalities may assent to plan of readjustment. 13. Change of place of business. 14. Combinations prohibited. 15. Merger. 16. Voluntary sale of franchise and prqiperty. 17. Rights of non-consenting stockholders on voluntary sale of franchise and property. 18. Alterations or extension of business. § 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, Ch. 564, § 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. § 6. Power to borrow money and mortgage property. — In addition to the powers conferred by the general corporation 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 may mortgage its property and fran- chises to secure the payment of such obligations, or of any debt contracted for said purposes. Every such mortgage, except purchase-money mortgages and mort- gages authorized by contracts made prior to May first, eighteen hundred and ninety-one, shall be consented to by the holders of not less than two-thirds of the capital stock of the corporation, which consent shall be given either in writmg or by vote 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 cor- poration that such' consent was given by the stock- holders in writing', or that it was given by vote at a meeting as aforesaid, shall be subscribed and acknowl- edged by the president or a vice-president and by the § 6 STOCK CORPORATION LAW 147 / secretary or an assistant secretary, 6f the corporation, and shall be iiled and recorded in the office of the clerk or register of the county wherein the corporation has its principal place of business. 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 princi- pal thereof, after two and not more than twelve years from the date of such bonds, into stock of the corpora- tion; and if the capital stock shall not be sufficient to meet the conversion when made, the directors shall from time to time, authorize an increase of capital stock suffi- cient 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 certifi- cate under the seal of the corporation, subscribed and ac- knowledged by the president and secretary of the cor- poration setting forth, 1. A copy of such mortgage; or resolution of directors authorizing the issue of such bonds; 2. That the holders of not less than two-thirds of the capital stock of the corporation duly consented to the execution of suoh mortgage or resolution of directors authorizing the issue of such bonds by such corporation; 3. 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 ; 4. 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 endorsed thereon the approval of the public service commission having jurisdiction thereof. When the certificate herein provided for has been filed, 148 STOCK CORPORATION LAW § 7 the capital stock of such corporation shall be increased to the amount specified in such certificate. 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; Ia 1869, Ch. 706, § 1; L. 1871, Ch. 481, § 2; L. 1875, Ch. 88, •§ 1; L. 1875, Ch. 611, § 13; L. 1878, Ch. 103, § 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; 129 App. Div. 140. 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 represents in sub- stance 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 presump- tive 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. After any such mortgage' heretofore or hereafter shall have been publicly recorded for more than one year in one or more of the counties of this state containing' the mortgaged premises or any part thereof, and the cor- poration shcil have received value for bonds actually is- sued under and secured by such mortgage, and interest shall have been paid on any of such bonds according to the terms thereof, such recital or representation of such mortgage so recorded shall be conclusive evidence that the execution of such mortgage has been duly and suf- ficiently 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 insuf- § 7 STOCK CORPORATION LAW 149 ficiency 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 corpora- tion, 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 in- sufficiency of consent by stockholders may be adjudged 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, because of in- sufficiency 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 dis- cretion, or upon the written request of the holders of not less than one-third of the capital stock of the corporation ; and in any such action so begun by or 'in behalf of th^ corporation, the recitals or representations of the mort- gage shall be presumptive evidence only as first above provided. Whenever hereafter, in compliance with any law of this state, the officers of any corporation sTiall have made and filed and recorded a certificate that the execu- tion 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 fait'.i shall re- ceive or purchase, for value, any bond or obligation pur- porting to be secured by such mortgage, at any time when said certificate shall remain of record and uncan- celed. Nothing in this section contained shall affect any right or any remedy in respect of any such right of any creditor accrued before this enactment nor shall it dis- pense with the necessity of obtaining the consent of the 150 STOCK CORPORATION LAW § 8 public service commission having jurisdiction thereof to any mortgage by a railroad corporation. Former § 8, 'Stock Corporation Law. Derivation.— L. 1901, Ch. 354, § 2. ' ' 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 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 such other corporation. Part of former § 40, Stock Corporation Law. Derivation.-* L. 1890, Ch. 564, § 40; L. 1892, Ch. 688, § 40; L. 1902, CJh. 601, § 1. Compare L. 1855, Ch. 67, § 7; L. 1848, Ch. 37, § 8; L. 1848, Ch. 40, § 8; L. 1848, Ch. 259, § 13; L. 1850, Ch. 140, § 8; L. 1853, Ch. 117, § 8; L. 1853, Ch. 135, § 10; L. 1854, Ch. 232, § 8; L. 1857, Ch. 546, § 8; L. 1867, Ch. 974, § 8; L. 1872, Ch. 146, § 1; L. 1874, Ch. 143, § 8; 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 STOCK CORPORATION LAW 151 § 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 cor- poration 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 name 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 : 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 afiFairs 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- 152 STOCK CORPORATION LAW § 10 ment, contained in any plan or agreement whioh 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 pights, 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. 1890, Ch. 5'64, § 3; L. 1892, Ch. 688, § 3; L. 1901, Ch. 354, § 1; L. 1902, Ch. 80, § 1; L. 1904, Ch. 706, § 1. Compare L. 1873, Ch. 469; L. 1874, Ch. 430, §§ 1, 2; L. 1878, Ch. 203, § 5. A reorganization 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 164 N. Y. 41; 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 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 ajy 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 § 11 STOCK CORPORATION LAW 153 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 conforriiity 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 formerly 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 exceed in the aggregate the maximum amount of stock mentioned in the certificate of incorporation. Amended by L. 1911, Ch. 858, in effect July 29, 1911. Former § 4, Stock Corporation Law. Derivation.— L. 1890i Ch. 564, § 4; L. 1892, Ch. 688, § 4; L. 1901. Ch. 354, § 1. Compare L. 1873, Ch. 469; L. 1874, Ch. 430, |§ 1. 2. § 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- 154 STOCK CORPORATION LAW § 12 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 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 ofHcers 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 officeffe 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, § 1. Compare L. 1874, Ch. 430, § 4. § 13 STOCK CORPORATION LAW 155 § 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 ex- pressed 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 stockholders called for that purpose. When such change shall be authorized by the stockholders as herein pro- vided, the president and secretary and a majority of the directors of such corporation shall sign a certificate stat- ing 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 cor- poration 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 prin- cipal 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 thereupon the principal office and place of business 156 STOCK CORPORATION LAW §§ 14, 15 of such corporation shall be changed as stated in said certificate. Former § 59, Stock Corporation Law. Derivation.— L. 1896, Ch. 929, § 1; L. 1905;^ Ch. 489, § 1. Compare L. 1864, Ch. 517, § 1. For forms of Consent and Certificate of Vote or Consent 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 re- straint 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. Compare L. 1854, Ch. 232, § 22. See 148 N. Y. 58; 146 N. Y. 407; 145 N. Y. 267; 143 N. Y. 537; 133 N. Y. 562; 121 N. Y. 582; 125 App. Div. 804; 124 App. Div. 401; 37 App. Div. 618; 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 certificate 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- § 16 STOCK CORPORATION LAW 157 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.— li. 1896, Ch. 932, §!;!,. 1900, Ch. 476, § 1; L. 1902, Ch. 98, § 1. Section 15 of the Greneral Corporation Law was not enacted for the benefit of foreign corporations. If a corporation fails to obtain the license thereby required; it cannot take advantage of its failure to obey the statute to defeat an action brought against it in this state. Gaul v. Kiel & Arthe Co., 199 N. Y. 472. For form of Certificate of Merger, see Form No. 21. § 1 6. Voluntary sale of franchise and property.— A stock corporation, except a railroad corporation and ex- cept as otherwise piovided 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 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 principal tangible property of which is located within a state adjoining the state of New York, may with the consent of the holders of ninety-five per centum of its-capital stock, sell and con- vey its property situate without the state of New York, not including its franchises, to a corporation organized under the laws of such adjoining state, and such sale and conveyance shall, in case of a sale to a domestic cor- poration, vest the rights, property and franchises thereby transferred, and in case of a sale to a foreign corpora- tion the property sold, in the corporation to which they are conveyed for the term of its corporate existence, sub- ject to the provisions and restrictions applicable to the corporation conveying them. Before such sale or con- 158 STOCK CORPORATION LAW § 17 veyance shall be made such consent shall be obtained at a meeting of the stockholders called upon like notice as that required for an annual meeting. 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 ap- point 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 shall be made to such stockholders. 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 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 Corporation Law. Derivation.— L. 1893, Ch. 638, § 1; L. 1901, Ch. 130, § 1. See 200 N. Y. 514; 189 N. Y. 560, afF'g 119 App. Div. 749. § 18 STOCK CORPORATION LAW 159 § 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 characffer, 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- 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, Ch. 354, § 1; L. 1905, Ch. 751, § 1. Compare L. 1888, Ch. 513, § 1. See 138 N. Y. 151. 160 STOCK CORPORATION LAW § 25 ARTICLE 3 Directors and Officers Section 25. Directors. 26. Change of number of directors. 27. When acts of directors void. 28. Liability of directors for making unauthorized dividends. 29. Liability of directors for loans to stockholders. 30. Officers. 31. Inspectors and their oath. 32. Books to be kept. 33. Stock books of foreign corporations. 34. Annual report to secretary of state. 35. Liability of 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 given 'by publication thereof, at least once in each week for two successive weeks immediately preceding such election^ in a news- paper published in the county where such election is to be held, and in such other manner as may be prescribed in the by-laws. 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 directorf of every stock corporation shall be elected annually. Former § 20, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 20; L. 1892, Ch. 688, § 20; L. 1901, Ch. 354, § 1; L. 1906, Ch. 238, i 1. Compare L. 1811, Ch. 67, § 3; L. 1847, Ch. 2iO, § 38; L. 1848, C9i. 37, § 3; L. 1848, Ch. 40, § 3; L. 1848, Ch. 259, I 5; L. 1850, Ch. 140, § 5; L. 1852, Ch. 228, § 3; L. 1853, Ch. 117, § 3; L. 1853, Ch. 135, §i 3, 7; L. 1853, Ch. 395, § 6; L. 1854, Ch. 232, § 3; L. 18-54, Ch. 282, § 26 STOCK CORPORATION LAW 161 § 1; L. 1855, Ch. 425; 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, Ch. 462, § 4. See 163 N. Y. 423; 132 App. Div. 3; 116 App. Div. 58. The election of directors and the rights of stockholders thereat are regulated by § 23 of tKe 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 compensation and oaths (which must be filed in the county clerk's office, together with a certificate of the result of the vote), see § 31, Stock Corporation Law. For form of "Notice of Annual Election, see form No. 22. § 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 secretary 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 unanimous 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 affidavit of the * The words " at the usual place of meeting of the directors " were stricken out by L. 1909, Ch. 421, § 1. 11 162 STOCK CORPORATION LAW § 26 custodian of the stock book of such ' corporation 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 superintendent 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 corporation 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 b*"; Increased, the additional di- rectors authorized by, such increase shall be elected by the votes of a majority of the directors in office at the time of the increase. If the original or an amended certifi- cate 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 constituting each class prior to such increase. , Amended by L. 1909, Ch. 421, §§ 1 and 2, taking effect May 21, 1909. Former § 21, Stock Corporation Law. Derivation.— li. 1890, Ch. 564, § 21; L. 1891, Ch. 57; L. 1892, Ch. 688, § 21; L. 1903, Ch. 320, § 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.%48, § 2; L. 1875, Ch. 4, § 1; L. 1875, Ch. 611, § 10; L. 1878, Ch. 316, § 2; L. 1879, Ch. 395; § 1; L. 1881, Ch. 422; L. 1886, Ch. 171, § 1; L. 1890, Ch. 23. See 186 N. Y. 215, rev'g 114 App. Div. 856; 160 N. Y. 500; 183 N. Y. 578; 125 N. Y. 25; 159 N. Y. 287; 109 App. Div. 49; 71 Misc. 511. For forms of above Consent and Certificate of Consent or Vote, see Forms Nos. 23 and 24. For form of Affidavit of Custodian of Stock Book, see Form No. 25. §§ 27, 28 STOCK CORPORATION LAW 163 / § 27. When acts of directors void. — When the direct- ors of any corporation for the first year of its corporate existence shall hold over and continue to he 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 lia;bility or obligation for the services of any such director, or any officer, c; attorney or counsel appointed by them, and every such liability or obligation shall be held to be fraudulent and void. Former § 22, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 22; L. 1892, Ch. 688, § 22. Compare L. 1885, Ch. 489. See § 28, Creneral Corporation Law. § 29, Greneral 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 f^om the surplus profits arising from the business of s/uch corporation, nor divide, with- draw or in any way pay to the stockholders or any of them, any part of the capital of such corporation, or re- duce 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 -wiho may have caused their dis- sent 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, di- vision 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 164 STOCK CORPORATION LAW §§ 29,30 expiration of its charter ; nor shall it prevent a corporation 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, Ch. 564, § 23; L. 1892, Ch. 688, § 23; L. 1901, Ch. 354, § 1. Compare K. 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, § 14; L. 1857, Ch. 546, § 13; L. 1875, Ch. 611, § 19. ' See 160 N. Y. 21, 32; 136 App. Div. 241. § 29. Liability of directors for loans to stockholders. — No loan of moneys shall 'be made by any stock corpo- ration, except a moneyed corporation or iby 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 Qr 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, Oh. 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 ap- § 31 STOCK CORPORATION LAW 165 point 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 pleasi^re. The policyholders of an insurance corporation shall" be eligible to election or appointment as its officers. Former § 27, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 27; L. 1892, Ch. 688, § 27. . Compare L. 1848, Ch. 40, § 5; L. 1853, Ch. 117, § 5; L. 1853, Ch. 135, § 6; L. 1854, Ch. 232, § 5; L. 1857, Ch. 546, § 6; L. 1874, Ch. 143, § 5; L. 1875, Ch. 611, §§ 6, 'lO; L. 1877, Ch. 228, § 5; L. 1878, Ch. 203, § 7. The president, while required to be a director ( § 30, Stock Corpora- tion Law), need not be a stockholder. See § 25, Stock Corporation Law. The other officers need not be directors. See, 201 N. Y. 194. § 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 inspect- ors 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 officer 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 office 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 faith- fully execute the duties of inspector at such meeting 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 166 STOCK CORPORATION LAW § 32 of the county in which such election or meeting shall be held, with a certificate of the result of the vote taken 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. § 32. Books to be kept. — Every stock corporation shall ke^p 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 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. The stock book of every such corporation shall be open daily, during at least three business hours, for the inspection of its stockholders and judgment creditors, who 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 chapter, until it shall have been entered in such book as required by this section, by an entry showing from and to whom transferred. The stock book of every such cor- poration and the books of account of every bank shall be presumptive evidence of the facts therein so stated in favor of the pllintifif, in any action or proceeding against such corporation or any of its officers, directors or stock- holders. 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 wilfully neglect or refuse to make any proper entry in such book or books, or shall' neglect § 33 STOCK CORPORATION LAW , 167 or refuse to exhibit the same, or to allow them to be in- spected and extracts taken therefrom as provided in this section, the corporation and such ofHcer 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. Former § 29, Stock Corporation Law. Derivation.— L. 1890, Oh. 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. 1892, Ch. 688, § 29. This language was retained by L. 1901, Ch. 354. It would seem, there- fore, that the penalty provided in the last sentence for the neglect or refusal of any officer or agent of a corporation to allow an in- spection of books or the making of extracts therefrom applies only to the stock book, notwithstanding the use of the word them. See 175 N. Y. 328; 163 N. Y. 423; 159 N. Y. 250; 120 App. Div. 756; 117 App. Div. 79; 115 App. Div. 821; 106 App. Div. 349; 103 App. Div. 208; 45 App. Div. 499; 62 Misc. 252; 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 ar- ranged, 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 the inspection of its stockholders and judgment creditors, and any officer of the state authorized by law to investigate the affairs of 168 STOCK CORPORATION LAW § 34 any such corporation. If any such foreign stock corpora- tion has in this state a transfer agent, whether such agent shall be a corporation or a natural person, such stock book may be deposited in the office @f such agent and shall be open to inspection at all times during the usual hours of transacting business, to any stockholder, judg- ment creditor or officer of the state authorized by law to investigate the affairs of such corporation. For any re- fusal to allow such book to be inspected, such corporation and the officer or agent so refusing shall each forfeit the sum of two hundred and fifty dollars to be recovered by the person to whom such refusal was made. 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. 1(55, §§ 1, 2. See § 665, Penal Law. See 196 N. Y. 302, rev'g 125 App. Div. 538; 122 App. Div. 617; 47 Misc. 687; 47 Misc. 540. For form of Stock Book, see Form No. 28. § 34. Annual report to secretary of state. — Every domestic stock corporation and every foreign stock cor- poration doing business within this state, except moneyed and railroad corporations, shall annually, dur- ing 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 amount of its debts or an amount which they do not exceed. 3. The amOBnt 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 designated in the manner prescribed by the code of civil procedure,* as a * § 432, subd. 2, transferred to § 16, General Corporation Law. § 35 STOCK CORPORATION LAW 169 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 arid 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, Ch. 688, § 30; L. 1897, Ch. 384, § 2; 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, § 112; L. 1853, Ch. 135, § 16; L. 1854, Ch. 232, § 24; L. 1857, Ch. 546, § 12; L. 1861, Ch. 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 Report, 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 representation, 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 corporation 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 purchaser of or sub- scriber 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 or notice or of any material representation therein shall have been com- municated either directly or indirectly to the person so 170 STOCK COKPORATIDN LAW § 35 becoming a creditor or stockhplder and he became such creditor or stockholder upon the faith thereof. No ac- tion can be maintained for a cause of action created by this section unless brought within tvfo years from the time the certificate, report or public notice shall have been made or given by the officers or directors of such cor- poration. Former § 31, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 31; L. 1892, Ch. 688, § 31. Compare L. 1848, Cih. 37, § 14; L. 1848, Ch. 40, § 15; L. 1853, Ch. 117, § 15; L. 1853, Ch. 135, § 17; L. 1854, Ch. 232, § 15; L. 1875, Ch. 611, § 21. See § 665, Penal Law. § 50 STOCK CORPORATION LAW 171 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. 63. Notice of meeting to increase or reduce capital stock. 64. Conduct of such meeting; certificate of increase or reduction. 65. Change in par value of shares. 66. Prohibited transfers to oflScers 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. § SO. Ipsue 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 the 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 Lisiw. Derivation.— L. 1890, Ch. 546, § 40; L. 1892, Ch. 688, § 40; L. 1902, Ch. 601, § 1. For form of Certificate of Common Stock, see Form No, 30. 172 STOCK CORPORATION LAW §§ 51, 52 § 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 indebtfedness 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 >f. Y. 576. § 52. Purchase of stock of other corporations. — Ariy 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 manu- facture, use or sal^ of the property, or in the construction or operation of works necessary oi: 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 cor- poration with which such stock corporation 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 stockholders therein and the cor- poration holding such stock shall possess and exercise in §§ 53, 54 STOCK CORPORATION LAW 173 respect thereof, all the rights, powers and privileges of individual owners or holders of such stock. Part of former § 40, Stock Corporation Law. Derivation.— X,. 1890, Oh. 564, § 40; L. 1892, Ch. 688, § 40; L. 1902, Ch. 601, § 1. See 194 N. Y. 417; 125 App. Div. 804; 124 App. Div. 401. § S3. 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 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 on the defaulting stockholder, personally, or by mail directed to him at his last known post-office address, of a written notice requiring him to make pay- ment within sixty days from the service of the notice at a place specified therein, and stating that, in case of 174 STOCK CORPOR-VTION LAW § 55 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 thf 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 cancellatfon, 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 Cororation Law. Derivation.— L. 1890, Ch. 5'64, § 43; L. 1892, Ch. 688, § 43. Compare L. 1811, Ch. 67, § 5; L. 1848, Ch. 37, § 6; L. 1848, Ch. 40, § 6; L. 1848, Ch. 259, § 12; L. 1850, Ch. 140, § 7; L. 1852, Ch. 228, § 4; L. 1853, Ch. 117, § 6; L. 1854, Ch. 232, § 6; L. 1857, Ch. 546, § 6; L. 1861, Ch. 149, § 6; L. 1867, Ch. 974, § 7; L. 1872, Ch. 820, § 4; L. 1874, Ch. 143, § 6; L. 1875, Ch. 606, § U; L. 1875, Ch. 611, § 11; L. 1878, Ch. 203, § 8. § 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 aiiy 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, 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 directors as to the value of the property purchased shall be conclusive; and in all §§ 56, 57 STOCK CORPORATION LAW 175 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, Cih..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 ■\^hile 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. 1892, Ch. 688, § 54; L. 1901, Ch. 354, § 1. See 194 N. Y. 165 ; 137 App. Div. 422. § 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 176 STOCK CORPORATION LAW § 58 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 execu- tion 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, i 54; L. 1901, Ch. 354, § 1. See 134 App. Div. 811. § 58. Non-liability in certain cases. — No person holding stock in any corporation as collateral security, or as ex- ecutor, administrator, guardian or trustee, unless he shall have voluntarily invested the trust funds in such stock, shall be personally subject to liability as a stockholder; but the person pledging such stock shall be considered the holder thereof and shall be liable as stockholder, and the estates and funds in the hands of such executor, ad- ministrator, guardian or trustee shall be liable in the like manner and to the same extent as the testator or intes- tate, 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. 1890, Ch. 564, § 57; L. 1892, Ch. 688, § 54; L. 1901, Ch. 354, § 1. Compare L. 1848, Ch. 37, §§ 10, 11, 15'; L. 1848, Ch. 40, §§ 10, 11, 16, 18, 24; L. 1848,^h. 259, § 2; L. 1848, Ch. 265, § 10; L. 1850, Ch. 140, §§ 10, 11; L. 1852, Oh. 228, §§ 5, 6, 7, 8, 9; L. 1853, Ch. 117, §§ 10, 11; L. 1853, Ch. 117, §§ 16, 18, 24; L. 1853, Cli. 135, § 14; L. 1851, Ch. 232, § 10; L. 1854, Ch. 232, §§ 12, 16, 18; L. 1857, Ch. 546, §§ 11, 16, 18; L. 1861, Ch. 149, § 2; L. 1867, Oh. 971, § 8; L. 1867, Ch. 974, §§ 10, 11; L. 1872, Ch. 248, § 3; L. 1872, Ch. 820, §§ 9, 10; L. 1S74, Ch. 143, §§ 10, 13; L. 1874, Ch. 288, § 4; L. 1875, Ch. 606, §§ 12, 15; L. 1875, Oh. 611, §§ 23, 25; L. 1877, Oh. 228, § 3; L. 1878, Ch. 203; §1 11, 12. See 180 X. Y. 254; 155 N. Y. 145; 158 N. Y. 157; 45 App. Div. §§ 59,60 STOCK CORPORATIOISr LAW 177 241, 499; 48 App. Div. 12; 49 App. Diy. 589; 88 App. Div. 401; 83 App. Div. 534; 118 App. Div. 605; 104 Supp. 166; 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 re- coverable, with costs against the stockholder. No stock- holder shall be personally liable for any debt of the cor- poration not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought aga.inst 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, Ch. 37, § 17; L. 1848, Ch. 40, §§ 10, 24; L. 1848, Ch. 265, i 10; L. 1852, Ch. 228, § 8; L. 1853, Ch. 117, § 24; L. 1857, Ch. 546, i 20; L. 1875, Ch, 611, §§ 23, 25; L. 1877, Ch. 228. § 3. See 194 N. Y. 165; 157 N. Y. 166; 155 N. Y. 145; 182 N. Y. 121; 146 N. Y. 84; 124 N. Y. 25; 89 N. Y. 334; 137 App. Div. 422; 134 App. Div. 811; 118 App. Div. 605; 113 App. Div. 782. § 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 payment to the cor- poration of the amount remaining unpaid upon such stock, and for the payment of indebtedness to employees 12 178 STOCK CORPORATION LAW § 61 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 the 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 certificate of incorporation so provides, or 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 corpora- tion. A certificate of the proceedings of such meeting, signed and sworn to by the president or vice-president, and by the secretary or assistant secretary, of the cor- poration, shall be filed and recorded in the offices where the original certificate of incorporation of such corpora- tion was filed and recorded; and the corporation 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 certificates for common stock therefor, upon such valuation as may have been agreed upon in the certificate of organization of such cor- poration, or the issue of such preferred stock, or share for share, but the total amount of such capital stock shall not be increased thereby. Former § 47^ Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 47; L. 1892, Ch. 688, S 47; L. 1901, Ch. 354, § 1. Compare L. 1880, Ch. 225. See 78 N. Y. 159; 124 App. Div. 266. For form of Certificate of Preferred Stock, see Form No. 32. For form of Notice of above Meeting, see Form No. 33. For form of Certificate of Proceedings to Authorime Preferred Stock, see Form No. 34. §§ 62, 63 STOCK CORPORATION LAW 179 § 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- 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, § 20; L. 1848, Ch. 40, § 20; L. 1848, Ch. 265', § 8; L. 1852, 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. 264, § 1. A tax of one-twentieth of one per cent, must be paid upon the amount of the increase of capital stock. See § 180, Tax Law, post. See 146 N. Y. 46. § 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 180 STOCK CORPORATION LAW § 64 the secretary of state and in the office of the clerk of the county 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 a 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 stockholder 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. 1892, Ch. 688, § 45; L. 1893, Ch. 700, § 1; L. 1901, Ch. 354, § 1. Compare L. 1848, Ch. 37, § 21; L. 1848, Ch. 40, § 21; L. 1848, Ch. 265, § 8; L. 1852, Ch. 228, § 13; L. 1853, Ch. 117, § 21; L. 1854, Ch. 232, § 20; L. 1866, Ch. 73, § 1; L. 1872, Ch. 248, § 7; L. 1872, Ch. 820, § 14; L. 1873, Ch. 737, § 7; L. 1875', Cli. 611, § 15; L. 1878, Ch. 264, § 2. For form of Notice of above Meeting, see Form No. 35. § 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 ^ock, 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 § 64 STOCK CORPORATION LAW 181 with the provisions of this chapter, the amount of capital theretofore authorized, and the proportion thereof actually 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, verified and ac- knowledged 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 dupli- cate thereof in the office of the secretary of state. In case of a reduction of the capital stock, except of a railroad corporation or a moneyed corporation, such certifi- cate or consent hereinafter provided for shall have indorsed thereon the approval of the comptroller, to the efifect that the reduced capital is sufficient for the proper purposes of the corporation, and is in excess of its ascertained debts and liabilities; and in case of the 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 182 STOCK CORPORATION LAW §§ 65, 66 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 impairnsent. Former § 46, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 46; L. 1892, Ch. 688, § 46j L. 1893, Ch. 700; L. 1901, Ch. 354; L. 1902, Ch. 286; L. 1904, Ch. 123, § 1. Compare L. 1848, Ch. 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; L. 1872, Ch. 248, § 7; L. 1872, Ch. 820, § 15; L. 1873, Ch. 737, § 7; L. 1875, Ch. 611, § 15; L. 1878, Ch. 264, § 3. For forms of Unanimous Consent, and Certificate of Vote or Con- sent to Increase or Reduce 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 Reduction, see Form No. 38. § 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 cer- tificate, as required for the increase or reduction of its capital stock. If such increase or reduction of the num- ber 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 cancellation of such old stock. This section does not authorize the increase or re- duction of the capital stock of such corporation. Former § 56, Sjjjock Corporation Law. Derivation.— L. 1893, Ch. 196, § 1; L. 1901, Ch. 354, § 1. Compaj-e L. 1866, Ch. 73; L. 1884, Ch. 397. For form of Certificate of Vote and Consent to Increase or Reduc- tion of Numher of Shares, see Form No. 39. § 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 § 66 STOCK CORPORATION LAW 183 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 consideration than the full value of the property paid in cash. No con- veyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stock- holder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, di- rector or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid, except that laborers' wages for services shall be preferred claims and be en- titled to payment before any other creditors out of the corporation assets in excess of valid prior liens or incum- brances. No corporation forrried under or subject to the banking, insurance or railroad law shall make any assign- ment in contemplation of insolvency. Every person re- ceiving 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 stockholder of any such corporation shall make any transfer or assignment of his stock therein to any person in contemplation of its insolvency. Every transfer or assignment 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 au- thorized 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- 184 STOCK CORPORATION LAW § 67 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. Derivation.— L. 1890, Ch. 564, § 48; L. 1892, Ch. 688, § 48; L. 1901, Ch. 354, § 1. See 197 N. Y. 412; 192 N. Y. 189; 163 N. Y. 340; 162 N. Y. 268; 161 N. Y. 226, 539; 159 N. Y. 490; 145 N. Y. 441; 128 App. jDiv. 691; 118 App. Div. 281; 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; 68 Misc. 329; 66 Misc. 166. , § 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 statament 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 § 68 STOCK CORPORATION LAW 185 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. § 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 the 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 rijghts 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 foregoing provisions of this section excused from depositing se- 186 STOCK CORPORATION LAW § 69 curity or filing 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 corporation issuing such certificate shall be discharged from all liability to such person upon compliance with such order; and obedi- ence to the order may be enforced by attachment against the officer or officers of the corporation on proof of his or their refusal to comply with it. Former § 51, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 51; L. 1892, Cfli. 688, § 51; L. 1905, Ch. 35, § 1. Compare L. 1873, Ch. 151, § 2. See 39 Mib'c. 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 m*re 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 § 70 STOCK CORPORATION LAW 187 ten dollars for every twenty-four hours thereafter until such statement shall be furnished. TTormer § 52, Stock Corporation Law. Derivation.— L. 1890, Ch. 564, § 52; L. 1892, Ch. 688, § 52. Compare L. 1854, Ch. ^01; L. 1862, Ch. 472. See 71 App. Div. 391; 43 Hun, 188; 9 Misc. 372. § 70. Liabilities of ofiEicers, 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, Ch. 384, § 4. See §i 28, 29, 34, 35 and 66, Stock Corporation Law, ante; see also §§ 15 and 16, General Corporation Law, ante. 188 STOCK COKPORATION LAW §§80,81 ARTICLE 5 Laws Repealed; When to Take Effect Section 80. Laws repealed. 81. When to take effect. § 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 Chaptor Section 1814 12 All (38th Sess.X 1825 325 1-3, 12 1828 , 20 15, ^U 17, 18 (2d Meet.) 1828 21 I, U 180 (2d Meet.) 1830 71, All 1848 145.' 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 All 1896 932 I, pt. adding § 58 to L. 1892, Ch. 688. * Became a law February 17, 1909. STOCK CORPORATION LAW 189 Laws of Chapter Section 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 1905 745 All 1905 750 All 1905 751 All 1906 238 All MISCELLANEOUS PROVISIONS AFFECTING CORPORATIONS [191] TAX LAW PROVISIONS Laws of 1909, Chapter 62, constituting Chapter Sixty of the Consolidated Laws. LOCAL TAXATION ARTICLE 1 Taxable Property and Place of Taxation § I. Short title. — This chapter shall be known as the " Tax Law." § 2. Definitions.' — i. "Tax district" as used in this chapter, means a political subdivision of the state having a board of assessors authorized to assess property therein for state and county taxes. ***** 3. 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 afifixed to the same ; all wharves 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 surface, 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 Only such portions of the Tax Law as pertain to corporations are given. [193] 13 194 TAX LAW PROVISIONS § 2 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, heat, water, oil, electricity or 'any property, sub- stance or product capable of transportation or conveyance therein or that is protected thereby, including the value of all franchises, rights, authority or permission to con- struct, maintain or operate, in, under, above, upon, or through, any streets, highways or public places, any mains, pipes, tanks, conduits or wires, with their appur- tenances, 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 sdme, except mines belonging to the state. A franchise, right, authority or permission specified in this subdivision shall for the purpose of tax- ation be known as a " special franchise." A special fran- chise shall be deemed to include the value of the tangible property of a person, copartnership, association or corpo- ration situated in, upon, under or above any street, high- way, public place or public waters in connection 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. 5. 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 vi^ithin this state, however secured or wherever such securities shall be held ; debts due by in- habitants of tliis 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- §§ 3-7 TAX LAW PROVISIONS 195 ation on their capital, as shall not be invested in real estate. » § 3. Property liable to taxation. — ^AU 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. 176; 54 App. Div. 217; 32 Misc. 84, § 4. Exemption from taxation. — The following prop- erty shall be exempt from taxation ; * * * 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. § 6. No deduction allowed for indebtedness fraudu- lently contracted. — No deduction shall be allowed in the assessment of personal property by reason of the indebt- edness of the owner contracted or incurred in the pur- chase of non-taxable property or securities owned by him or held for his benefit, nor for or on account of any in- direct 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 taxation. § 7. When property of non-residents is taxable. — I. Non-residents of the state doing business in the state, Either aj principals or partners, shall be taxed on the capital invested in such business, as personal property, 196 TAX LAW PROVISIONS §§ 9, 10 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 purpose of identifica- tion and taxed in the tax district where such property is situated, unless exempt by law. This subdivision shall not apply to money, or negotiable collateral 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 A^ Y. 159; 49 App. Div. 108; 32 Misc. 61. § g. Place of taxation of real property. — Real property shall be assessed 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, Chapter 315, § 1, in effect October 1, 1911. § 10. Taxation of real property divided by line of tax district. — If a farm or lot is divided by a line between two or more tax districts it shall be assessed in the tax district in which the dwelling-house or other principal buildings are located, in the manner provided by section nine of this chap- ter, the same as though such farm or lot was wholly in such tax district, except that if the land is unoccupied or has not buildings thereupon, the portion of such farm, lot or tract- of land lying in each disl^rict shall be separately assessed therein. If such land is situated in two or more counties and is wild and uncultivated and not occupied and used for agricultural purposes, the portions of such land lying in each county shall be separately assessed therein. If the boundary line of a tax district passes through a building, any portion of which is used as a dwelling, the owner of such buildingjif occupying the same or residing in either tax district, and otherwise, the person occupying such build- ing as a dwelling-house, may elect in which district such building and the. adjacent land, owned, occupied and con- nected therewith shall be assessed, by serving a written no- tice of such election on the assessors of each tax district during the month of May ; but if such election is not made the property shall be assessed in the tax districts in which it is located. §§ 11, 12, 20 TAX LAW PROVISIONS 197 § II. Place of taxation of property of corporations.— The real estate of all incorporated companies liable to taxa- tion shall be assessed in the tax district in which the same shall lie, in the same manner as the real estate of indi- viduals. All the personal estate of every incorporated com- pany liable to taxation on its capital shall be assessed in the tax district where the principal office or place for transact- ing the financial concerns of the company shall be, or if such company have no principal office, or place for transact- ing its financial concerns, 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 divi- dend resides. § 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 deduct- ing the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under .the laws of this state, shall be assessed at its actual value. See 126 N. Y. 433; 146 N. Y. 304; 156 N. Y. 417. ARTICLE 2 Mode of Assessment § 20. Ascertaining facts for assessment. — The assessors in each tax district shall annually between May first and July first ascertain by diligent inquiry all the property and the names of all the persons taxable therein, except that in towns containing an incorporated village having a popula- tion of more than ten thousand inhabitants, according to the last state census, the assessors may have from April fifteenth until July first to ascertain the taxable property and names of persons taxable in such towns, and except that in towns containing an incorporated city having a population of more than ten thousand inhabitants, accord- ing to the last state census, where said city so situated shall 198 TAX LAW PROVISIONS § 21 have its own separate board of assessors, the town asses- sors may have from May first to July first to ascertain the taxable property and names of persons taxable in such towns. The comptroller shall on- or about May fifteenth in each year transmit to the assessors of §ach 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 considered by them as their authority to assess to the state such of the lands described thereon as are legally subject to taxation. Amended by L. 1911, Chapter 116; L. 1911, Chapter 805, in effect July 28, 1911. § 21. Preparation of assessment-roll. — They shall pre- pare an assessment-roll in three parts. Part one shall contain the assessment of real property ex- clusive of special franchises; part two shall contain the assessment of personal property; part three shall contain the assessment of special franchises. Part one shall contain seven columns, in which, accord- ing to the best information in their power, they shall set down: 1. In the first column, the name of the owner or the last known owner or reputed owner of each parcel or portion of real property separately assessed. Such name shall be regarded as an aid to identify such parcel or portion. A mistake in the name of the owner, or the last owner, or reputed owner, shall not affect the validity of the assess- ment against the parcel or portion. 2. In the second column, a description of such parcel or portion of real property separately assessed, sufficiently accu- rate to identify the same. As soon as a tax map of the district shall be prepared and adopted by the assessors, the number or nbmbers of such parcel or portion on the tax map shall be entered and shall be deemed a sufficient description thereof. 3. In the third column, a statement of the approximate quantity of the square feet, square rods or acres contained in such parcel o» portion. 4. In the fourth column, the full value of such parcel or portion of real property. 5. In the fifth column, the full value of such parcel or portion if the same is included within an incorporated vil- lage and the name of the village. 6. In the sixth column there shall be entered by the proper official the amount of the tax levied against such parcel or portion of real property. § 21 TAX LAW PROVISIONS 199 7. In the seventh column, there shall be entered by the proper official the date of the payment of such tax. Part two shall contain seven columns, in which, accord- ing to the best information in their power, they shall set down: 1. In the first column, the names of all persons and cor- porations in the tax district, taxable on personal property. 2. In the second column, the full value of all the taxable personal properly owned by each person respectively after deducting the just debts owing by him. 3. In the third column, the value of taxable rents re- served and chargeable upon lands within the tax district estimated at a principal sum, the interest of which at the legal rate per annum shall produce a sum equal to such annual rents, and if payable in anything except money, the value of the rents in money to be ascertained by them and the value of each rent assessed separately. 4. In the fourth column, the full value of the capital stock of each corporation assessed pursuant to the pro- visions of section twelve of this chapter. 5. In the fifth column, the full value of all the taxable personal property owned by each person respectively after deducting the just debts owing by him when such person resides in an incorporated village and the name of the vil- lage, and the full value of the capital stock of each cor- poration, assessed pursuant to the provisions of section twelve of this chapter, when such corporation has its prin- cipal office in an incorporated village and the name of the village. 6. In the sixth column, there shall be entered by the proper official the amount of the tax levied against such person or corporation named. 7. In the seventh column, there shall be entered by the proper official the date of the payment of such tax. Part three shall contain six columns in which there shall be set c^own : 1. In the first column, the names of each corporation, association, copartnership or person taxable on a special franchise. 2. In the second column, a description of the special franchise in such form as the state board of tax commis- sioners shall prescribe. 3. In the third column, the value of the special franchise as fixed by the state board of tax comm.issioners. 4. In the fourth column, such part of the value of the special franchise as fixed by the state board^of tax com- missioners and which shall have been apportioned to an 200 TAX LAW PROVISIONS §§ 27, 28 incorporated village in the manner provided in this chapter and the name of the village. 5. In the fifth column, there shall be entered by the proper official the amount of the tax levied against the cor- poration, association, copartnership or person named. 6. In the sixth column, there shall l)e entered by the proper official the date of the payment of such tax. Amended by L. 1911, Chapter 315, in effect October 1, 1911. § 27. Reports of corporations. — The president or other proper officer of every moneyed or stock corporation deriv- ing an income or profit from its capital or otherwise shall, on or before June fifteenth, deliver to one of the assessors of the tax district in which the company is liable to be taxed and, if such tax district is in a county embracing a portion of the forest preserve, to the comptroller of the state, a written statement spedfying: 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 carried on. Such statement shall be verified by the officer making the same to the effect that it is in all respects just and true. If such statement is not made within twenty days after the fif- teenth day of June, or is insufficient, evasive or defective, the assessors may compel the corporation to make a proper statement by mandamus. § 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 fce 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 comptroller. Upon such statement being furnished and the costs of the suit being paid, the comptroller, if he shall be satisfied that such omission was not wilful, may, in his discretion, discontinue such suit. See 9 State Rep. 469. § 180 TAX LAW PROVISIONS 201 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.* 186. Franchise tax on water-works companies, gas compa- nies, electric or steam heating, lighting and power companies.* 187. Franchise tax on insurance corporations.* * 188. Franchise tax on trust companies.* 189. Francliise taX on savings banks.* 190. Purchase of state bonds; credit to be given.* 191. Tax upon foreign bankers.* 192. 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. 200. Regulations as to such writ of certiorari. 201. Warrant for the collection of taxes. 202. Information of delinquents. 203. 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. § 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 * Omitted in this book. 202 TAX LAW PROVISIONS § 180 is authorized to have, and a like tax upon any subsequent increase. Provided, that in no case shall such tax be less than five dollars.* Such tax shall be due and payable upon the incorporation of such corporation or upon the increase of its capital stock. Except in the case of a rail- load corporation neither the secretar}- of state nor county clerk shall file any certificate of incorporation or article of association, or give any certificate to any such cor- poration or association until he is furnished a receipt for such tax from the state treasurer, and no stock corpora- tion 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 be- fore paid. In case of the consolidation of existing corpo- rations into a corporation, such new corporation shall be required to pay the tax hereinbefore provided for onlv upon the amount of its capital stock in excess of the ag- gregate amount of capital stock of said corporations. This section shall not apply to state and national banks or to building, mutual loan, accumulating fund and co- operative associations. A railroad corporation need not pay such tax at the time of filing its certificate of incor- poration, 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 proposed in its articles of association, and such certifi- cate shall not be granted by the public service commis- sion until it i^furnished with a receipt for such tax from the state treasurer. If the board of railroad commission- ers or public service commission shall have heretofore •■ granted, or the public service commission shall here- after grant, such certificate and upon an appeal from the determination of such board of railroad commissioners or public service coihmission, such certificate has been or ' Formerly one dollar. § 181 TAX LAW PROVISIONS 203 may hereafter be denied the comptroller shall refund the amount of tax so paid to the railroad corporation or corporations by which such tax was paid, upon proof of payment being presented and appropriation being made therefor. Amended by L. 1910, Ch. 472; L. 1911, Ch. 91, in eflfect April 29, 1911. § i8i. License tax on foreign corporations. — Every foreign corporation, except banking corporations, fire, marine, casualty and life insurance companies, co-oper- ative fraternal insurance companies, and building and loan associations, authorized to do business under the general corporation law, 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; and if any year thereafter any such corpora- tion shall employ an increased amount of its capital stock within this state, the same license fee 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 as the gross assets employed in any business within this state bear to the gross assets wherever employed in business. For purposes of taxation, the capital of a corporation in- vested 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 taxes shall be paid shall be fixed by the comptroller, who shall have the same authority to examine the books and records in this state of such foreign corporations, and the employees thereof, and the same power to issue his warrant for the collection of such taxes, as he now has with regard to domestic cor- porations. No action shall be maintained or recovery 204 TAX LAW PROVISIONS § 182 had in any of the courts in this state by such foreign corporation after thirteen months from the time of be- ginning such business within the state, without obtain- ing a receipt from the comptroller 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. § 182. Franchise tax on corporations. — For the privi- lege of doing business or exercising its corporate fran- chises in this state every corporation, joint-stock com- pany or association, doing business in this state, shall pay to the state treasurer annually, in advance, an annual tax to be computed upon the basis of the amount of its capital stock, employed during the preceding year within this state, and upon each dollar of such a,mount. 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 w-herever employed in busi- ness. For purposes of taxation, the capital of a corpora- tion invested in the stock of another corporation shall be deemed to be assets located where the physical prop- erty represented by such stock is located. If the divi- dends 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 Oc- tober, 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 dividends 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 provided, § 182 TAX LAW PROVISIONS 205 shall be taxed at the rate of three-fourths 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 w^hich 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 (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 thereof, 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 orie 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 on 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 206 TAX LAW PROVISIONS § 183 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 emplo3'^ed 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. See 129 N. Y. 558; 105 N. Y. 76; 131 N. Y. 64; 91 Hun, 158; 148 N. Y. 690; 150 N. Y. 46; 152 N. Y. 59; 154 jS. Y. 1, 101; 156 N. Y. 585; 157 N. Y. 70; 159 N. Y. 70; 49 App. Div. 108; 55 App, Div. 265; 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 associa- tions, and corporations, joint-stock companies or associa- tions owning or operating elevated railroads or surface 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, manufacturmg or mining corporation shall not be exempted from the payment of such tax, unless at least forty per centum of the capital stock of such corporation is invested in prop- § 192 TAX LAW PROVISIONS 207 erty in this state and used by it in its laundering, manu- facturing or mining business in this state. See 158 N. Y. 162, 168, 155, X. Y. 1, 408; 145 N. Y. 587; 144 N. Y. 160; 129 N. Y. 543; 92 N. Y. 487. Sections 184-191, inclusive, are omitted, for the reason that they do not apply to business corporations. § 192. Reports of corporations. — Corporations liable to pay a tax under this article shall report as follows: 1. Corporations paying a franchise tax. Every corpo- ration, association or joint-stock company liable to pay a tax under section one hundred and eighty-two of this chapter shall, on or before November fifteenth in each year, make a written report to the comptroller of its con- dition at the close of its business on October thirty-first preceding, 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. 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 comptroller of its con- dition at the close of its business on June thirtieth pre- ceding, gtating 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, shall, on or before August first of each year, make a written report to the comptroller of its condition at the close of its business on June thirtieth preceding, stating the amount of its gross earnings from business done in this state, the amount of dividends of every 208 TAX LAW PROVISIONS §§ 193, 194 nature declared or paid during the year ending June thirtieth, the authorized capital of the company and the amount of capital stock actually issued and outstanding. 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 comptroller 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 declared 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 outstanding. Subdivisions 5-7, inclusive, relate to insurance corporations, foreign bankers, trust companies and savings banks, respectively. § 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 comptroller with the report provided for in the last section. If th« comp- troller is not satisfied with the valuation so made and returned he is authorized and .empowered to make a valuation thereof, and settle an account upon the valua- tion so made by him, and the taxes, penalties and inter- est to be paid the state, § 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 § 195 TAX LAW PROVISIONS 209 same, to the effect that the statements contained therem are true. Such reports shall contain any other data, in- formation or matter which the comptroller may require to be included therein, and he may prescribe the form in which such reports shall be made and the form of oath thereto. When so prescribed such form shall be used in making the report. The comptroller may require at any time a further or supplemental report under this article, which shall contain information and data upon such matters as the comptroller may specify. See 148 N. Y. 690. § 195. Powers of comptroller to examine into affairs of corporations. — In case any report required by any of the preceding sections of this article shall be unsatis- factory to the comptroller, or if any such report is not made as herein required, the comptroller is authorized to make an estimate of the dividends paid by such corpora- tion and the value of the capital stock employed by it, from any such report or from any other data, and to order and state an account according to the estimate and value so made by him for the taxes, percentage and inter- est due the state from such corporation, association, joint-stock company, person or partnership. The comp- troller shall also have power to examine or cause to be examined, in case of a failure to report or in case the re- port is unsatisfactory to him, 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 his information, either personally or he may appoint a commissioner by a written appointment under his hand and official seal for that purpose. Every commissioner so appointed shall be authorized to make such examination and take such testi- mony and hear such proofs and report the proofs and tes- timony so taken and the result of his examination so made and the facts found by him to the comptroller. The comptroller shall, therefrom, or from any other data which shall be satisfactory to him, order and state an ac- 14 210 TAX LAW PROVISIONS §§ 196, 197 count for the tax due the state, together with the expenses of such examination and the taking of such testimony and proofs. Such expenses shall be fixed and adjusted by the comptroller. See L. 1896, c. 908. § 196. Notice of statement of tax; interest. — Upon auditing and stating every account for taxes or other charges under this article, the comptroller shall forth- with send notice thereof in writing to the person, part- nership, company, association or corporation against whom the same is made, which notice may be mailed to the post-office address of such person, partnership, associ- ation, company or corporation. All accounts so audited and stated shall bear interest upon the total amount found due thereon to the state, for taxes, percentage, in- terest and other charges, from the expiration of thirty days after sending such notice until payment thereof shall be made. § 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 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 payable into the state treasury on or before tlie first day of August in each year. A tax imposed by section one hundredtand eighty-seven of this chapter on an in- surance 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 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 sec- tion one hundred and ninety-one of this chapter on a § 198 TAX LAW PROVISIONS 211 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 cor- poration is not made within the time required by this article, the corporation, association, joint-stock company, person or partnership, liable to pay the tax, shall pay into the state treasury, in addition 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 corporation, association, joint-stock company, person or partnership failing to make the an- nual report required by this article, or failing to make any special report required by the comptroller, within any reasonable time to be specified by him, shall forfeit to the people of the state the sum of one hundred dollars for every such failure, and the additional sum of ten dol- lars for each day that such failure continues. Such tax shall be a lien upon and bind all the real and per- sonal property of the corporation, joint-stock company or association liable to pay the same from the time when it is payable until the same is paid in fufl. § 198. Revision and readjustment of accounts by comptroller. — If an application be filed with the comp- troller 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 comptroller may at any time, upon notice thereof sent to the person, partnership, company, association or corporation against wlhom it is stated, revise and readjust such account, and if it shall be made to appear upon any such application, by evidence submitted to him or otherwise, that any such account included taxes or other charges which could not have been lawfully de- manded, or that payment has been legally made or ex- acted of any such account, he shall resettle the same according to law and the facts, and charge or credit, as 212' TAX LAW PROVISIONS § 199 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, as- sociation or corporation. Such credit,, whether allowed before or after the passage of this chapter may be, by the person, partnership, company, association or corporation in whose favor it is allowed, assigned to a person, part- nership, 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 comptroller such assignment shall thereupon be entitled to credit on the books of the coqiptroller 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 as- signee. The comptroller shall forthwith send written notice of his determination upon such application to the applicant, and to the attorney-general, which notice may be sent by mail to his post-office address. § 199. Review of (ietermination of comptroller by certiorari. — The determination of the comptroller upon any application made to him by any person, partnership, companjy, 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 comptroller shall return, on such certiorari, the ac- counts and alf the evidence before him on such applica- tion 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 er- roneous 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 determination of the supreme court upon any such §§ 200, 201 TAX LAW PROVISIONS 213 review, an appeal to the court of appeals may be taken by either party. § 20O. Regulations as to such writ of certiorari., — No certiorari to review any audit and statement of an ac- count of any determination by the comptroller under this article shall be granted unless notice of application there- for is made within thirty days after the service of the notice of such determination. Eight days' notice shall be given to the comptroller 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 before making the application and an undertaking filed with the comptroller, 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 determination of the comptroller affirmed, the applicant for the writ will pay all costs and charges which may accrue against him or it in the prose- cution of the writ, including costs of all appeals. See 33 Misc. 569. § 201. Warrant for the collection of taxes. — After the expiration of thirty days from the sending by the comp- troller 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 comptroller may issue a war- rant under his hand and official seal, directed to the sher- iff of any county of the state, commanding him to levy upon and sell the real and personal property of the per- son, partnership, company, association or corporation against which such account is stated, found within his county for the payment of the amount thereof with in- terest thereon and costs of executing the warrant, and to return such warrant to the comptroller and pay to the state treasurer the money collected by virtue thereof, 214 TAX LAW PROVISIONS §§ 202, 203 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 corpo- ration 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 proceed upon the same in all respects, with like effect, and in the same manner as prescribed by law in respect to execu- tions 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. § 202. Information of delinquents. — It shall be the duty of any person having knowledge of the evasion of taxation under this article by any corporation, associa- tion, joint-stock company, partnership or person liable to taxation thereunder, or any omission on their part to make the reports required by this article, to make a written report thereof to the comptroller of the state, ^with such information as may be in his possession as may lead to the recovery of any taxes due the state therefrom. If, in his opinion, the interests of the state require it,, the comptroller may employ such person to assist in the col- lection and preparation of evidence and in the prosecu- tion 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, asso- ciation, company, partnership or person, by reason of such report and such services, as shall have been agreed upon between such person and the comptroller or at- torney-general as a compensation therefor, shall be paid to such person, and nothing shall be paid to such person for such report or services vinless there shall be a re- covery of taxes by reason thereof. § 203. Action for recovery of taxes; forfeiture of char- ter of delinquent corporation. — An action may be brought §§ 204,205 TAX LAW PROVISIONS 215 by the attorney-general, at the instance of the comp- troller, in the name of the state, to recover the amount of any account audited and stated by the comptroller 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 comptroller is satisfied that the failure to pay the same is intentional, he shall so report to the attorney-general, who shall immediately bring an action, in the name of the people of the state, for the forfeiture of the franchise of any corporation, joint-stock company or association failing to make such payment, and if it is found that such failure was intentional, judg- ment shall be rendered in such action for the forfeiture of its franchise and for its dissolution, and thereafter such franchise shall be annulled. § 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 comptroller a report of the stock cor- porations 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 comptroller may prescribe the forms and furnish the blanks for such reports. The secretary of state shall make like reports to the comptroller whenever required by him relating to any such corporations whose certifi- cates have been filed or to whom a certificate of authority has been issued prior to the time when this article takes effect, and during any period of time specified by the comptroller in his request for such report. § 205. Eixemptions from other state taxation. — The personal property of every corporation, company, associ- 216 TAX LAW PROVISIONS §§ 206, 207 ation or partnership, taxable under this article, other than for an organization tax, shall be exempt from as- sessment and taxation upon its personal property for s'tat^ 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, other than for an organ- ization tax, and as provided in the banking law, shall be exempt from assessment and taxation for all other jjiur- poses. 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 taxation by reason of the provisions of this article. The owner and holder of stock in an incorporated trust company liable to taxation under the provisions of this chapter shall not be taxed as an individual for such stock. Personal property exempted from taxation by this section shall not include shares of stock of banks and banking associations taxable under the provisions of section twenty-four of this chapter. § 2o6. Application of tcixes. — 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. Limitation of time. — The provisions of the code of civil procedure relative to the limitation of time of en- forcing a civil remedy shall not apply to any proceeding or action takftn 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 bavins- been in effect as of date of the original enactment of the corporation tax law. See §§ 290-307, inclusive, relating to procedure on review of erroneous assessments, refunds and proceedings to collect taxes. § 270 TAX LAW PROVISIONS 217 ARTICLE 12 Tax on Transfers of Stock* SfiCTlON 270. Amount of tax. 271. Stamps how prepared and sold. 271a. Sale of stamps. 272. Penalty for failure to pay tax. 273. Cancelling stamps; penalty for failure. 274. Contracts for dies; expenses how paid. 275. Illegal use of stamps; penalty. 276. Power of state comptroller. 277. Civil penalty; 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 there shall immediately accrue and be collected a tax, as herein provided, on all sales, or agreements to sell, or memoranda of sales of stock, and upon any and all de- liveries or transfers of shares or certificates of stock, in any domestic or foreign association, company or corpora- tion, 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 as- signment 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 investing 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. It is not intended 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 certificates are not actually sold, See Rules of State Comptroller's Office, post. 218 TAX LAW PROVISIONS § 271 nor upon such stock certificates so deposited; nor upon mere loans of stock or the return thereof. The payment of such tax shall be de'noted by an adhesive stamp or stamps affixed as follows : In the case of sale, or trans- fer, where the evidence of the transaction is shown only by the books of the association, company br corporation, the stamp shall be placed upon such books; and where the transaction is effected by the delivery or transfer of a certificate the stamp shall be placed upon the certifi- cate; and in cases of an agreement to sell, or where the sale is eflfected 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 every bill or memorandum of sale or agreement to sell before mentioned shall show the date thereof, the name of the seller, the amount of the sale, and the matter or thing to which it refers, and no further tax is hereby imposed upon the delivery of the certificate of stock, or upon the actual issue of a new certificate when the orig- inal certificate of stock is accompanied by the duly stamped memorandum of sale. Ee-enacted by L. 1910, Ch. 38; amended by L. 1911, Ch. 352, in effect June 15, 1911. See note to § 280, post. Where a voting trustee of a corporation issues trust certificates for stock to the stoclcholder of another company, the assets of which such corporation has purchased, entitling him to participate in the beneiits represented by the certiiieates, securing the future payment of money, dividends or profits, or the future transfer of any stock, there is a delivery or transfer of shares or certificates of stock within the meaning of § 270. United States Radiator Cor- poration V. The State of New York (decision of Court of Claims reported in Ne^York Law Journal, February 24, 1911). § 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 state comp- troller, in such form, and of such denominations and in such quantities as he may from time to time prescribe. §§ 271a, 272 tax law provisions 219 and shall be sold by him to the person or persons de- siring to purchase the same ; he shall make provision for the sale of such stamps in such places and at such times as in his judgment he may deem necessary. § 271a. Sale of stamps. — No person, firm, company, association or corporation other than a corporation or- ganized under the banking law of this state or under the national bank act of the United States, or a duly author- ized agent of the comptroller, shall sell or expose for sale any stamp issued pursuant to this article, without first obtaining from the comptroller his written consent, ex- cept 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 required by this article. No person shall sell any stamp for a sum less than the face value thereof without the written consent of the comptroller. Any per- son violating any provision of this section shall be guilty of a misdemeanor. Added by L. 1911, Ch. 12, in eflFect March 9, 1911. § 272. Penalty for failure to pay tax. — Any person or persons liable to pay the tax by this article imposed, or any one who acts in the matter as agent or broker for such person or persons, who shall make any sale, transfer or delivery without paying the tax by this article im- posed, or 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 thereof, or who shall transfer or cause the same to be transferred upon the books or records of the association, company or corporation with- out having the stamps provided for in this article affixed thereto, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not less than five hundred nor more than one thousand dollars, or be 220 TAX LAW PROVISIONS §§ 273, 274 imprisoned for not more than six months, or both such fine and imprisonment, at the discretion of the court. Amended by L. 1911, Ch. 352, in effect June 15, 1911. * § 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, in effect June 15, 1911. § 274. Contracts for dies; expenses how paid. The state comptroller 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 provide such stationery 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 ; he shall be the custodian of all stamps, dies, plates or othef material or thing furnished by him and used in the manufacture of such state tax stamps, and all expenses incurred by him and under his direction in carrying out the provisions of this article shall be paid to him by the state treasurer from any moneys appropri- ated for such purpose. §§ 275, 276 TAX LAW provisions 221 § 275. Illegal use of stamps; penalty. — Any person who shall willfully remove or alter or knowingly permit to be removed or altered the cancelling 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, affixed pursuant to the requirements of this article, ex- cept as hereinafter provided, shall be guilty of a misde- meanor and on conviction thereof shall be liable to a fine of not less than five hundred nor more than one thousand dollars, or be imprisoned for not more than one year, or by both such fine and imprisonment, at the discretion of the court. If any such stamp shall be affixed to any memorandum of sale with the intention of paying a tax, but delivery pursuant to such sale shall not be made in conformity with the memorandum thereof, then such stamp may be removed from such memorandum and sub- sequently used on some other memorandum of sale, pro- vided that when so used there. shall be attached to the memorandum, to which said stamp shall be so affixed, a written statement signed by the vendor or the agent making such sale, setting forth in detail the facts justify- ing such re-use. Amended by L. 1911, Ch. 12, in -effect March 9, 1911. § 276. Power of state comptroller. — Every person or firm, a part of whose regular or ordinary business is the making of sales, agreements to sell, deliveries, or trans- fers, of shares or certificates of stock, or conducting or transacting a brokerage business, and every company, association or corporation making a sale, agreement to sell, delivery or transfer of shares or certificates of stock, or conducting or transacting a brokerage business, shall keep or cause to be kept a just and true book of account, wherein shall be plainly and legibly recorded the date of making every sale, agreement to sell, delivery, or trans- 222 TAX LAW PROVISIONS § 276 fer, of shares or certificates of stock, and every transac- tion in relation' to any stock, the number of shares, the total amount covered by each such sale, agreement to sell, delivery, transfer or transaction, and the name of the other party thereto; and such book shall. at all times be subject to the inspection of the comptroller, or any of his representatives, between the hours of ten o'clock in the forenoon and three o'clock in the afternoon, except on Saturdays, Sundays, and legal holidays. The state comp- troller may, at any time after sales or transfers of stock which by the provisions of this article are subject to a tax, inquire into and ascertain whether the tax thereby imposed has been paid. For the purpose of ascertaining such fact the comptroller shall have the right and it shall be his duty to examine such book of account of any per- son, firm, company, association or corporation required to keep the same, and the bills or memoranda of sale or transfer of shares or certificates of stock; and such bills or memoranda of sale or transfer shall remain ac- cessible for such examination for six months from their respective dates. Every association, company or corpo- ration shall keep or cause to be kept a transfer ledger, register or stock certificate book, containing a complete and true entry and record of all sales or transfers of shares or certificates of its stock made upon its books. It shall also retain and keep all surrendered or canceled shares or certificates of its stock and all memoranda re- lating to the sale or transfer of any thereof ; and all such transfer ledgers, registers or stock certificate books and surrendered or canceled shares or certificates of stock and memoranda relating to the sale or transfer of its stock,, shall «t all times between the hours of ten o'clock in the forenoon and three o'clock in the afternoon, except Saturdays, Sundays and legal holidays, be open to exam- ination by the comptroller. The state comptroller may enforce his right to examine such books of account and bills or memoranda of sale or transfer and such transfer ledger, register and stock certificate books and surren- §§ 277, 278 TAX LAW PROVISIONS 223 dered or canceled shares or certificates of stock by man- damus. If the comptroller ascertains that the tax pro- vided for in this article has not been paid, he shall bring an action in his name as such comptroller, in any court of competent jurisdiction, 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 corporation who shall fail to keep such book of account, or bills or memoranda of sale or trans- fer, or transfer ledger, register or stock certificate book or surrendered or canceled shares or certificates of stock as herein required, or who shall refuse to permit the comptroller or any of his representatives to examine any of said books, records or papers, at any time, as above provided, 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, in effect June 15, Idll. § 277. Civil penalty; how recovered. — Any person who shall violate the provisions of this article shall in addition to the penalties herein provided forfeit to the people of the state a civil penalty of five hundred dollars for each violation. The state comptroller shall bring an action in his name as such comptroller in any court of competent jurisdiction for the recovery of any civil pen- alty and all moneys collected by him shall be paid into the state treasury. § 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 224 TAX LAW PROVISIONS §§ 279, 280 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 offered or received in evidence in any court in this state. § 279. Application of taxes. The taxes imposed under this article and the revenues thereof shall be paid by the state comptroller into the state treasury and be appli- cable to the general fund, and to the payment of all claims and demands which are a lawful charge thereon. § 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 comptroller may, upon presentation of a claim for the amount of such stamp or stamps and upon the produc- tion of evidence satisfactory to him 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 he may allow, to such claimant out of any moneys appropriated for that purpose. Such claims shall be presented to the comp- troller 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 eflfect, in which case such claim shall be presented within ninety days after the date on w4iich this act shall take effect. If the comptroller rejects a claim or any part thereof, the claimant may file a claim for the recovery of such sum as the comptroller 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 § 280 TAX LAW PROVISIONS 225 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 comptroller. For the purposes of this section, the comp- troller'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 comp- troller as hereinbefore provided. Added by L. 1910, Ch. 186, in effect April 29, 1910. 15 RULINGS OF STATE COMPTROLLER'S OFFICE GOVEENIN6 THE COIiEOriON OF TAXES ON STOCK TRANSFERS For the infoimatton of the public the following is a 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 statute imposing this tax was considerably broadened by the amendment thereto, effected by chapter 352 of the Laws of 191 1, with the result that the rulings heretofore made asserting ex- emptions from the tax are as a rule not controlling. 2. By the statute as amended, a tax is imposed upon all sales or a"^reements to sell and upon all deliveries or transfers of shares or certificates of stock, of any and all associations, companies and corporations, whether do- mestic or foreign, at the rate of two cents on each hun- dred dollars of face value or fraction thereof. 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 inferest in or merely the legal title to said stock, or possession thereof for an}' purpose. The only exceptions to this rule are those expressly provided for in section 270 of the law. 5. A transfer of voting trust certificates constitutes a transfer of shares of stock within the meaning of the [226] RULINGS OF STATE COMPTROLLER'S OFFICE 227 Statute and is taxable, as well as the transfer of stock from stockholders to voting trustees. 6. The mere surrender of a certificate of stock for re- issue in smaller denomination is not taxable; but if re- issued 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 transfers made by the latter, whether to trustees, legatees or other persons are taxable. 8. Ihe law applies to the stock of foreign as well as domestic corporations and to residents and nonresidents 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 constitutes- an essential step to render the transfer effectual, it sub- jects it to a tax although in all other respects made ■without the State. ID. Where the sale or transfer is shown only by the books of the company the stamps must be placed upon such books, and where it 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 memoran- dum of such sale, to which the stamps shall be affixed. This bill or memorandum with stamp attached must be affixed to the certificate when presented for transfer. A strict compliance with these requirements will be insisted upon. II. Every such bill or memorandum of sale, agreement to sell or sales ticket must show th6 date thereof, the name of the seller, the amount of the sale and the matter or thing to which it refers, and all such memorandum 228 RULINGS OF STATE COMPTROLLER'S OFFICE of sale or sales ticket not used for the purpose of trans- fer must be kept by the broker for six months from their respective dates. 12. All persons liable for the payrpent of the tax and all persons acting as agents or brokers for any such per- son, who in any manner assist in, consummating a sale or transfer without paying the required- tax are guilty of a misdemeanor and liable to severe penalties. 13. Likewise persons acting as transfer agents are forbidden by the statute to transfer stock on the books of the company until the required tax has been paid ; and for a failure to perform this duty they are guilty of a misdemeanor and liable to severe penalties. 14. Every stamp used to denote the payment of the tax must be canceled by the user by writing or staiflping thereon the initials of his name and the date upon which the stamp is attached or used. He must also cut or perforate the stamp in a substantial manner so that it cannot again be used. A failure so to do renders the party guilty of a misdemeanor and liable to severe penalties. 15. Every broker and every corporation mkking a saJe of shares or certificates of stock is required to keep a just and true book of account setting forth the date of the sale or transfer, and . every transaction relating thereto, including the number of shares involved, the total amount covered thereby, and the name of the party , to whom the sale or transfer is made. This book shall at all times between the hours of 10 a. m. and 3 p. m. (Saturday, Sunday and legal holidays excepted) be sub- ject to examination by the Comptroller or any of his representati«^es. A failure to comply with these pro- visions will subject the offender to severe penalties. 16. Every company is required to keep a transfer reg- ister, ledger Or stock certificate book containing a full and true record of. all sales or transfers of its stock. It is also required to retain and keep all surrendered and canceled shares or certificates of stock and all memo- RULINGS OF STATE COMPTROLLER'S OFFICE 229 / randa relating thereto, all of which are subject to exam- ination by the Comptroller or any of his representatives between the hours of lo a. m. and 3 p. m. (Saturdays, Sundays and legal holidays excepted). A failure to comply with this provision will subject the ofifender to severe penalties. 17. Severe penalties, civil and criminal, are provided by the act for the illegal sale or use of stamps, for the failure to pay the tax imposed and for violation of the other provisions thereof. 18. Furthermore, the failure to pay the tax constitutes an absolute defense to an action brought to recover the purchase price of the stock. Stock transfer tax stamps are of the following de- nominations: Two, ten, twenty and fifty cents, $1, $2, $10 and $20, and are for sale by Empire Trust Co., 42 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, Buffalo; Chemung Canal Trust Co., Elmira; The Northern New York Trust Company, Watertown; Broome County Trust Company, Binghamton; Bank of Jamestown, Jamestown, New York. CODE OF CIVIL PROCEDURE PROVISIONS County Courts. § 341. Domestic corporation, when' deemed resident. — For the purpose of determining the jurisdiction, of a county court, in either of the cases specified in the last section, a domestic corporation or joint stock associa- tion, whose principal place of business is established, 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 railroad cor- poration 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 serv- ice thereof upon a domestic corporation wherever it is located. Amended by L. 1911, Ch. 68, in effect September 1, 1911. § 399. Attempt to commence action in a 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 pro- vision 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 that defendanf: 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 cor- poration, to a like officer of the county, in which it is established by law, or wherein its general business is or was last 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 deliv- [230] CODE OF CIVIL PROCEDURE PROVISIONS 231 ery 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 ser- vice thereof upon the defendant sought to be charged, or by the first publication of the summons, as against that defendant, pursuant to an order for service upon him in that manner. § 400. Attempt to commence action in a court not of record. — The last section, ^xcludin^ the provision requir- ing 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 corporation is located, as specified in that section ; provided that actual service thereof is made with due diligence. Summons. § 431. How peirsonal service of summons made upon a domestic corporation. — Personal service of the summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof, within the state, as follows: * * * 3. * * * to the president or other head of the cor- poration, the secretary or clerk to, the corporation, the cashier, the treasurer, or a director or managing agent. § 432. Id. ; upon a foreign corporation. — Personal service of the summons upon a defendant, being a foreign corporation, must be made by delivering a copy thereof, within the state, as follows: 1. To the president, vice-president, treasurer, assist- ant treasurer, secretary or ass'istant secretary; or, if the corporation lapks either of those officers, to the officer performing 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 is 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- gence, and the corporation has property within the state, 232 CODE OF CIVIL PROCEDURE PROVISIONS or the cause of action arose therein; to the cashier, a director, o*r a managing agent of the corporation, within the statfe. 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 anqther person upon whom process against it may be served within the state, process against the corporation in an action upon any liability incurred withiiu this state or if the corporation has property within the state may after such death, removal or revoca- tion and before another designation is made be served upon the secretary of state. Subdivision 2 was amended by L. 1909, Ch. 65, § 3. Subdivision 4 was added by L. 1909, Ch. 65, § 3. For remainder of section, see Code of Civil Procedure, § 931a, and § 16, General Corporation Law. § 433- Service of process, etc., to commence a special proceeding. — :The provisions of this article, relating to _ the mode of service of a summons, apply likewise to the service of any process or other paper, whereby a special proceeding is commenced in a court, or before an officer, except a proceeding to punish for contempt, and except where special provision for the service thereof is other- wise made by law. § 438. Cases in which service of summons by publica- tion, etc., may be ordered. — An order directing the serv- ice of a summons upon a defendant, without the state, or 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 an unintorporated association consisting of seven or more persons, having a president and treas- urer, neither of whom is a resident of this state; ******** 6. Where the defendant is a resident of the state or a domestic corporation ; and an attempt was made to com- CODE OF CIVIL PROCEDURE PROVISIONS 233 mence the action against the defendant, as required in chapter fourth of this act, before the expiration of the limitation applicable thereto as fixed in that chapter ; and the limitation would have expired, within sixty days next preceding the application, if time had not been ex- tended by the attempt to commence the action. 7. Where the action is against the stockholders of a corporation, or joint-stock company, and is authorized by a law of the state, and the defendant is a stockholder thereof., * * * § 439. Papers upon which order for publication may be made. — The order must be founded upon a verified complaint, showing a sufficient cause of action against the defendant. to be served, and proof by affidavit of the additional facts required by the last 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 fourth, fifth, or seventh of the last section, that the plaintiff has been or will be unable, with due diligence, to make per- sonal service of the summons. See also §§ 440-445, inclusive, fiode of Civil Procedure. Pleadings. § 525- 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 ac- quainted with the facts, except as follows: I. Where the party is a domestic corporation, the veri- fication must be made by an officer thereof. * * * 3. Where the party is a foreign corporation; * * * or where the action or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney ; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney; in either case the verification may be made by the agent of or the attorney for the party. 234 CODE OF CIVIL PEOCEDc/RE PROVISIONS § 526. 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 gn 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 knowl'- edge, and the reason why it is not made by the party. Arrest. § 549. When the right to arrest depends upon the nature of the action. — A defendant may be arrested in an action, as prescribed in this title, where the action is brought for either of the following causes : 1. To recover a fine or penalty. 2. To recover damages for a personal injury; an in- jury to property, including the wrongful taking, deten- tion or conversion of personal property ; breach of a promise to marry ;• misconduct' or neglect in office, or in a professional employment; fraud, or deceit; or to re- cover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, 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 ; or to recover for money received, or to recover p'fopertj' or damages for the conversion or misapplication of prop- erty where it is alleged in the complaint that the money was received or the property was embezzled or fraudu- lently misapplied by a public officer or by an attorney, solicitor or ^unselor, or by an officer or-agent of a cor- poration or banking association in the course of his employment, or by a factor, agent, broker, or other per- son 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 the new action to recover the money or chattel. * * * CODE OF CIVIL PROCEDURIi PROVISIONS 235 § 6io. Order to recite grounds; service of order. — The in;unction ordei must briefly recite the grounds for the injunction. Where it 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 pre- scribed in this act, for making personal service of a sum- mons upon a corporation. Copies of the papers, upon which the order was granted, must be delivered with the copy of the order. § 624. 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. § 625. 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 of an undertaking, executed pursuant to the pro- visions of this title, may bring an action thereon, with- out further leave of the court. Attachment against Property. § 635. In what actions a warrant of attachment may be granted. — A warrant of attachment against the prop- erty 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 damages for one or more of the follow- ing causes: I. Breach of contract, express or implied, other than a contract to marry. 236 CODE OF CIVIL PROCEDURE PROVISIONS 2. Wrongful conversion of personal property. 3. An injury to person or property, in consequence of negligence, fraud or other wrongful act. For " injury to property," see Code of (Bivil Procedure, § 3343, subd. 10. / § 636. What must be shown lo procure the warrant. — To entitle the plaintiff to such a warrant he must show, by affidavit, to the satisfaction of the judge granting the same, as follows: 1. That one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him. 2. That the defendant is either a foreign corporation or not a resident of the state; or, if he is a,natural person and a resident of the state, that he has departed there- from, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; or, if the defendant is a natural per- son or a domestic corporation, that he or it has removed, or is about to remove, property from the state, 'with in- tent to defraud his or its creditors; or has assigned, dis- posed of, or secreted, or is about to assign, dispose of or secrete property with the like intent; or where, for the purpose of procuring credit, or the extension of credit, the defendant hate 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^^nd acquiescence as to his financial responsi- bility or standing; or, where the defendant, being an adult and a resident of the state, has been continuously without the state of New York for more than six months next before the granting of the order of publication of the summons against him, and has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed in section four hundred and thirty of this act; CODE OF CIVIL PROCEDURE PROVISIONS 237 or a designation so made no longer remains in force; or service upon the person so designated can not be, made within the state, after diligent effort. § 646. 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 subscription to the capital stocJc of the corporation, made by a person within the 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. For "foreign corporation," see Code of Civil Proteedure, § 3343, 8ubd. 18. § 647. Interest in shares or bonds. — The rights or shares which the defendant has in the stock of an asso- ciation or corporation; or in a bond negotiable or other- wise, 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, which the defendant had when they were so attached. Amended by L. 1911, Ch. 419, in effect September 1, 1911, § 648. Attachment; bond, note, etc. — The attachment may also be levied upon a cause of action arising upon contract; including a bond, promissory note, or other in- strument for the payment of money only, negotiable, or otherwise; whether past due, or yet to become due, exe- cuted by a foreign or domestic government, sitate, county, public officer, association, 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 238 CODE OF CIVIL PROCEDURE PROVISIONS upon a right or interest, present or future, to any of the property or estate of a deceased person which may be- long to the defendant and which could be legally assigned by him as legatee or distributee, whe^er 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 intestacy of the deceased. Levy of the attachment thereupon is deemed a levy upon, and a seizure and attachment of, the rights and interests of the defendant at the time of such levy, subject to the rights of the executor, administrator or trustee of such estate to administer the same accord- ing to law. See § 708, Code of Civil Procedure. § 649, How property to be attached. — A levy under a warrant of attachment must be made as follows : r. Upon real property, by filing with the clerk of the county where it is situated, a notice of the attachment, 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, a promissory note, or other in- strument for the payment of money, by taking the same into the sheriff's actual custody. He must thereupon, without delay, deliver to the person from whose posses- sion the property is. taken, if any, a copy of the warrant, 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 association CODE OF CIVIL PROCEDURE PROVISIONS 239. or corporation, of interests or profits thereon, with the president, or other head of the association or corporation, or the secretary, cashier, or managing agent thereof, or if it consists of a right or interest in an estate of a de- ceased person arising under the provisions of a will or under the provisions of law in case of intestacy, 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 six hundred and fifty-five of this act, by entering in the proper clerk's office, the judgment rendered in said action, and there- after levying on said property in the manner prescribed in subdivisions one, two and three of this section. § 650. Certificate of defendant's interest to be fur- nished. — Upon the application of a sheriff, holding a war- rant of attachment, the president or other head of an as- sociation or corporation, or the secretary, cashier, or man- aging 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, be- longing to the defendant, must furnish to the sheriff a certificate, under his hand, specifying the rights or num- ber of shares of the defendant, in the stock of the associa- tion or corporation, with all dividends declared, or in- cumbrances thereon; or the amount, nature, and descrip- tion 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 re- quires. § 65X1 Person refusing certificate may be examined. — ■ 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 affidavit, 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 rea- son to suspect that a certificate given by him is untrue, or 240 CODE OF CIVIL PROCEDURE PROVISIONS that it fails fully to set forth the facts, required to be shown thereby ; the court or judge may make an order, di- recting him to attend, at a specified time, and at a place within the county to which the warrant is issued, and sub- mit to an examination under oath, coifcerning the same. The order may, in the discretion of the court or judge, direct an appearance before a referee named therein. § 707. When judgment enforceable only against at- tached property. — Where a defendant, who has not ap- peared, is a non-resident of the state, or a foreign corpo- ration, and the summons was served without the state, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, the judgment can be enforced only against the property which has been levied upon, by virtue of the warrant of attachment, at the time when the judgment is entered. But this section does not declare the efifect of such a judg- ment, with respect to the application of any statute of limitation. See i§ 435-446, Code of Civil Procedure. Preferred Causes. § 791. Preference 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 the last section but one : ********* 7. 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 the receiver of such corporation or association; an action in which a county or town is sole plaintiff or defendant. 8. An action against a corporation, founded upon a note or other evidence of debt for the absolute payment of money. An action upon an undertaking given upon an appeal to the court of appeals or to stay the execution on an appeal to the court of appeals. CODE OF CIVIL PROCEDURE PROVISIONS 241 Evidence. § 839. Admission by member of corporation. — The admission of a member of an aggregate corporation, who is 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 witness concerning a transaction of the corporation, when the official record of such testimony shall be re- ceived. Subpoena duces tecum; order to produce. § 867. Production, etc., of book of account.— 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 subpoena 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 pre- scribes, an order relieving him wholly or partly from the obligations imposed upon him by the subpoena or the order for productiqn, 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 caused 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. § 868. Books, etc., of coiporation, how produced. — The production, upon a trial, of a book or paper, belong- ing to or under the control of a corporation, may be com- 16 242 CODE OF CIVIL PROCEDURE PROVISIONS pelled, in like manner as if it was in the hands, or under the control, of a natural person. For that purpose, a subpoena duces tecum, or an order, made as prescribed in the last section, 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. § 869. Whem personal attendance not reqxiired by sub- poena duces tecum. — In a case specified in the last sec- tion, or where a subpoena duces tecum, or an order, made as prescribed in section eight Jiundred and sixty-six or section eight hundred and sixty-seven of this act, requires a public olficer to attend, and bring a book or paper under his control, the subpoena or order is deemed to be suf- ficiently obeyed, if the book or paper is produced by a subordinate officer or employee 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 partic- ular officer of the corporation or public officer is required, a subpoena, without a duces tecum clause, must also be served upon him. Documentary Evidence. § 929. Book of foreign corporation; when evidence. — Where a party wishes to prove an act or transaction of a foreign corporation, the book or books of the corporation may be used for that purpose, as presumptive evidence, whether any or all of the parties are or are not members of the corporation. • § 930. When a copy thereof is evidence. — If an original book is not produced at the trial, as prescribed in the last section, a copy thereof, or of an entry therein, verified as prescribed in the next section, may be used, with like effect as the original book; provided that the party, in- tending to use the copy, gives the adverse party at least ten days' notice of his intention, specifying briefly the CODE OF CIVIL PROCEDURE PROVISIONS 243 nature of the evidence proposed to be given. But this and the next section do 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. § 931. How copy to be verified. — 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. The wit- ness must testify that the copy produced is correct ; that he made it, or compared it with the original; and that he then knew that the original book so copied, or containing the entry, was the book of the corporation ; or that it was then acknowledged to him to be such, by an officer or re- ceiver of the corporation, or a person having the custody thereof, naming the person who made the acknowledg- ment; and he must specify where, and in whose custody, the original was then kept. § 931a. Copy of designation of person upon whom to make service, as evidence. — An exemplified copy of a designation 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 certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the au- thority of the officer executing it. Reference of Actions. § loii. Reference. by consent; when and how made. — Elxcept in a case specified in the next section, the whole issue, or any of the issdes in an action, either of fact or of law, must be referred, upon the consent of the parties, manifested by a written stipulation, signed by their at- torneys, 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 244 CODE OF CIVIL PROCEDURE PROVISIONS course, referring the issue or issues for trial, to that per- son 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 other- wise. See General Eules of Practice, Nos. 30, 79. § I0I2. Qualification of the last section. — But a refer- ence shall not be made, of course, upon the consent of the parties, in an action to annul the marriage, or for a divorce or a separation ; or an action against a corpora- tion, to obtain a dissolution thereof, the appointment of a receiver of its property, or the distribution of its prop- erty, unless it is brought by the attorney-general; or an action wherein a defendant, to be affected by the result of the trial, is an infant. In a case specified in this sec- tion, where the parties consent to a reference, the court may, in its discretion, 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 must, upon the applica- tion of either party, appoint another referee. See General Rules of Practice, No. 72. Challenges to Jurors. § ii8o. Challenges, how tried. Exceptions to and re- view of the determination of the court, in reference thereto. — * * * 'pj^e 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 share- holder or a stockholder therein, shall constitute a good ground for a'challenge to the favor as to such juror. Garnishment. § 1 39 1. Execution against wages, incomes, etc. — * * * 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 CODE OF CIVIL PROCEDURE PROVISIONS 245 become due and owing to him, to the amount of twelve dollars or more per week, but only one execution against the wages, debts, earnings, salary, income from trust funds or profits of such judgment debtor shall be satisfied at one tirne and where more than one execution has been issued or shall be issued pursuant to the provisions of this section against the same judgment debtor, they shall be satisfied in the order of priority in which such execu- tions are presented to the person or persons from whom such wages, debts, earnings, salary, income from trust funds or profits are due and owing. The judgment creditor may apply to the court in which said judgment 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 other- wise, the court, if a court not of record, a judge or justice thereof, must issue, or if a court of record, a judge or jus- tice, must grant an order directing that an execution issue against the wages, debts, earnings, 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, earnings, salary, income from trust funds or profits are due and owing, or may there- after 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 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 satisfied and paid or until modified as hereinafter provided. 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 ex- ecution, or who shall become indebted to such judgment debtor in the future, and while said execution shall re- maiii a lien upon said indebtedness to pay over to the officer presenting the same, such amount of such indebt- edness as such execution shall prescribe until said ex- 246 CODE OF CIVIL PROCEDURE PROVISIONS edition shall be wholly satisfied and such payment shall 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 oificer presenting said execution, the percentage of said indebtedness, he shall be liable to an action •therefor by the judgment cre4itor named in such execution, and the amount so recovered by such judgment creditor shall be applied towards the payment of said execution. Either party may apply at any time to the court from which such ex- ecution 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 oi 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 such hearing the said court, judge or justice may make such modification of said ex- ecution ^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. Amended by L. 1911, Ch. 489, in effect September 1, 1911. Determination of Claim to Real Property. § 1650. This article applies to corporations. An ac- tion may be maintained, as prescribed in this article, by or against a corporation, or by or against an unincor- porated association, as if it was a natural person, or such an action may be maintamed by or against the receiver or other successor of any such corporation or association. Actions. § 1775. Complaint in actions by or against corpora- tions. — In an action brought by or against a corporation, the complaint must aver that the plaintiff, or the defend- ant, as the case may be, is a corporation; must state whether it is a domestic corporation or a foreign corpo- ration; and, if the latter, the State, country, or govern- ment, by or under whose laws it was created. But the plaintiff need not set forth, or specially refei to, any act or proceeding, by or under which the corporation was created. CODE OF CIVIL PROCEDURE PROVISIONS 247 § 1776. When proof of corporate existence unnecessary. — In an action, brought by or against a corporation, the plaintiff need not prove, upon the trial, the existence of the corporation, unless the answer is verified, and contains an affirmative allegation that the plaintiff, or the defend- ant, as the case may be, is not a corporation. § 1777. 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 misnomer is pleaded in the answer, or other pleading in the defend- ant's behalf. § 1778. Action against a corporation upon a note, etc. — 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, an order, extending the _ time to answer or demur, shall not be granted, except by the court, upon notice to the plaintiff's attorney. In such an action, unless the defendant serves, with a copy of his answer or demurrer, a copy of an order of a judge, directing that the issues presented by the pleadings be tried, the plaintiff may take judgment, as in case of default in pleading, at the expiration of twenty days after service of a copy of the complaint, either per- sonally with the summons, or upon the defendant's at- torney, pursuant to his demand therefor ; or, if the service of the summons was otherwise than personal, at the ex- piration of twenty days after the service is complete. § 1779. When foreign corporation may sue. — An ac- tion 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 .otherwise specially prescribed by law. But a foreign cor- poration cannot maintain an action, founded upon an act, or upon a liability or obligation, express or implied, aris- 248 CODE OF CIVIL PROCEDURE PROVISIONS ing 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 authority 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 creaited; or of an act, done at such a meeting, which is not in conflict with the same laws, or the laws of the State. § 1780. When foreign corporation may be sued. — ^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. An action against a foreign corpora- tion may be maintained by another foreign corporation, or by a non-resident, in one of the following cases only: 1. Where the action is brought to recover damages for the breach of a contract, made within the State, or relat- ing to property situated within the State, at the time of the making thereof. 2. Where it is brought to recover real property situated within the State, or a chattel, which is replevied within the State. 3. Where the cause of action arose within the State, ex- cept where the object of the action is to afifect the title to real property situated without the State. Judgment Creditor's Action. § 1879. Application of this article; what property can- not be reached^— This article does not apply to a case, where the judgment debtor is 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 property, held in trust for a judgment debtor, where the trust has been created by, or the fund CODE OF CIVIL PROCEDURE PROVISIONS 249' 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. § 1948. Attorney-general may maintain action. — The attorney-general may maintain an action, upon his own information, or upon the complaint of a private person, in either of the following cases : I. Against a person who usurps, intrudes into, or un- lawfully holds or exercises within the state, a franchise, or a public office, civil or military, or an office in a domes- tic corporation. ****** . ~-:,-., -%•..... 3. 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. 4. Against a foreign corporation which exercises within the state any corporate rights, privileges or franchises, 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 corpo- • ration would, in accordance with section one hundred and thirty-one of the general corporation law, 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 manner contrary to the pub- lic policy of the state. Subdivision 4 was amended by L. 1909, Ch. 65, § 3. See 201 N. Y. 203; 130 App. Div. 626. 250 CODE OF CIVIL PROCEDURE PROVISIONS § 1949. Proceedings when complaint names rightful in- cumbent. — In an action, brought as prescribed in the last section, for usurping, intruding into, unlawfully holding, or exercising an office, the attorney-general, besides stat- ing the cause of action in the complaint, may, in his dis- cretion, set forth therein the name of the person rightfully entitled to the office, and the facts showing his right thereto ; and thereupon, and upon proof, by affidavit, that the defendant, by means of his usurpation or intrusion, has received any fees or emoluments belonging to the office, an order to arrest the defendant may be granted by the court, or a judge. The provisions of title first of chapter seventh of this act apply to such an order, and the pro- ceedings thereupon and subsequent thereto, except where special provision is otherwise made in this title. For that purpose, the order is deemed to have been made as pre- scribed in section 549 of this act. Judgment may be rendered upon the right of the defendant, and of the party ,so alleged to be entitled; or only upon the right of the defendant, as justice requires. § 1950. 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 was an action specified in section 968 of this act, without procuring an order, as prescribed in section 970 of this act. § 1953- Damages; how recovered. — Where a final judgment has been rendered, upon the right and in favor of the person so alleged to be entitled, 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. § 1954- 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. • CODE OF CIVIL PROCEDURE PROVISIONS 251j § 1955- When injunction may be granted. — In an ac- tion brought as specified in subdivisions third or fourth of section nineteen hundred and forty-eight of this act, the final judgment, in favor of thg plaintifif, must perpet- ually restrain the defendant or defendants from the com- mission or continuance of the act or acts complained of. A temporary injunction to restrain the commission or continuance thereof may be granted, upon proof, by affi- davit, that the defendant or defendants have violated any of the provisions of either of the said subdivisions third or fourth of section nineteen hundred and forty-eight of this act. The provisions of title second of chapter seventh of this act apply to such a temporary injunction, and the proceedings thereupon, except where provision is otherwise made in this title. For that purpose, the injunc- tion order is deemed to have been granted as prescribed in section six hundred and three of this act. In the trial of an action brought as prescribed in subdivisions third or fourth of section nineteen hundred and forty-eight of this act, a party or a witness is not excused from answer- ing 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. § 1956. Final judgment in action for usurping office, etc. — 'In any other 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 there- from, and in favor of the people or the relator, as the case requires, for the costs of the action. As a part of the final judgment, the court may, in its discretion, also award, that the defendant, or, where there are two or more de- fendants, that one or more of them, pay to the people a fine, not exceeding two thousand dollars. The judgment for ihe fine may be docketed, and execution may be issued thereupon, in favor of the people, as if it had been ren- dered in an action to recover the fine. The fine, when collected, must be paid into the treasury of the State. 252 CODE OF CIVIL PROCEDURE PROVISIONS Supplementary Proceedings. § 2463. Cases where this chapter is not applicable; what property cannot be reached. — This article does not authorize the seizure of, or other interference with, any property, which is expressly exempt by law from levy and sale by virtue of an execution ; 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 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 institution 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 supported by his labor. Since the amendment to this section by L. 1908, Ch. 278, proceed- ings supplementary to execution lie against domestic and foreign eorporatio'ns. (See Rabie v. Astor Trust Co., 61 Misc., 651, and Meyer V. Consolidated Ice Co., 132 App. Div. 265, aff'di on anotlier point in 196 N. Y. 471.) The eases resenting 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 PENAL LAW PROVISIONS 259 to which it is or may be a party, nor shall it apply to organizations organized for benevolent or charitable purposes, 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. Added by L. 1909, Ch 483; amended by L. 1911, Ch. 317, in effect September 1, 1911. See §§ 274-6, Penal Law. § 421. Untrue and misleading advertisements. — Any person, firm, corporation or association or any employee thereof, who, in a newspaper, circular, circular or form letter or other publication published in this state, know- , ingiy makes or disseminates any statement or assertion of fact concerning the quantity, the quality, the value, the method of production or manufacture, or the reason fpr the price of his or their merchandise, or the manner or source of purchase of such merchandise, or the pos- session of prizes, rewards or distinctions conferred on account o'f such merchandise or the motive or purpose of a sale, intended to give the appearance of an offer ad- vantageous to the purchaser which is untrue or calcu- lated to mislead ; or any person, firm, corporation or as- sociation or any employee. thereof, who, in a newspaper, circular, circular or form letter or other publication pub- lished or circulated in any language in this state, know- ingly makes or disseminates any statement or assertion of fact knowing the same to be false, concerning the ex- tent, location, ownership, title or other characteristic, quality or attribute of any real estate located in this state or elsewhere, or the motive or purpose of a sale of such real estate intended to give the appearance of an offer advantageous to the purchaser which is untrue and 260 PENAL LAW PROVISIONS calculated to mislead, is guilty of a misdemeanor. Noth- ing contained in this section shall apply to a sale of real estate at public auction conducted by an * auctioner duly licensed by a city of the first clas^ Amended by L., 1911, Ch. 759, in effect September 1, 1911. § 430. Marking articles made 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 ar- ticle is " linen,'' " pure linen," or " all linen," unless the material of which the said collars or cuffs are manufac- tured contains at least one fold or ply which has a flax thread in both its warp and filling, is guilty of a misde- meanor. § 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 pos- session 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 ii^icate 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 guilty of a misdemeanor .t § 432. Illegal charges for elevating, receiving or dis- charging grain. — A person who charges for elevating, * So in original. t See §§ 952a-g, inclusive, Code of Criminal Procedure. PENAL LAW PROVISIONS 261 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 di 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 conceals therein any other substance or thing whatever, in a case where special provision for the punishment thereof is not other- wise 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, wrp,pper, package, 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 indica- tion 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 manufactured 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 other- wise indicated on or with such article ; or, 2. Sells or offers for sale an article, which to his knowl- edge is falsely described or indicated upon any such pack- iage, 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' * See § 37, General Construction Law, post. 262 PENAL LAW PROVISIONS no name or trade-mark shall be attached, and orally or otherwise represents that such goods are the manufac- ture\or production of some other than the actual manufac- turer or producer, in a case where tbe punishment for such oflfense is not specially provided for otherwise by statute, Is guilty of a misdemeanor. § 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 to 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 production of the person named, indicated or denoted by such mark- ing, 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* whQ sells, ofifers 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 disclosing the fact, or havi^ a mark or label, plainly and legibly stating the fact, conspicuously affixed to every can or vessel con- taining the same, under circumstances not constituting an offense, for the punishment of which provision is other- wise specially made by statute, is guilty of a misde- meanor. * See note to § 433, Penal Law, ante. PENAL LAW PROVISIONS 263 § 439* Corrupt influencing of agents, employees or ser- vants. — 'Whoever gives, oflfers 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 agreernent 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 ma- terials, supplies or other articles, or from a person who renders such service or labor ; and any person* who gives or offers such an agent, employee or servant such com- mission, discount or bonus shall be guilty of a misde- meanor and shall be punished by a fine of not less than ten dollars nor more than five hundred dollars, or by such fine and by imprisonment- for not more than one year. § 440. Conducting business under assumed name. — I. No person or persons shall hereafter carry on or con- 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 I person or persons conduct, or transact or intend to con- duct or transact such business, a certificate setting forth the name under which such business is, or is to be, con- * See note to § 433, Penal Law, ante. 264 PENAL LAW PROVISIONS ducted 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. Said certificate shall be executed and duly acknowledged by the person or persons so conduct- ing, or intending to conduct said business. 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 man- ner 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 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 affect 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 in- clude the true or real name of at least one of such persons transacting such business. 5. Any ]*erson 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. § 441. Producing unpublished, undedicated or. copj'- righted opera or dramatic composition, without consent of owner. — Any person* who causes to be publicly performed * See note to § 433, Penal Law, ante. PENAL LAW PROVISIONS 265 or represented fot profit any unpublished, undedicated or copyrighted dramatic composition, or musical composi- tion 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 copy- righted and without the consent of its owner, or proprie- tor, 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 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 sub- sequent 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 relat- ing to the purchaser's means or ability to pay in said statement contained were false at the time of making said statement and were known to the purchaser to be false. 266 PENAL LAW PROVISIONS § 531. Coercion by employers. — Atiy person* or em- ployer of labor, and any person of any corporation on be- half of such corporation, who shall hereafter coerce or compel any person, employee, labor^ or mechanic, to enter into an agreement, either written or verbal from such person, employee, laborer or mechanic, not to join or become a member of any labor organization, as a con- dition of such person securing employment, or continuing in the employment of any such person, employer or cor- poration, 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. § 584. Witnesses' privileges. — No person shall be ex- cused from attending and testifying, or producing any books, papers or other documents before any court, mag- istrate, or referee, upon any investigation, proceeding or trial, for a violation of any of the provisions of this arti- cle, 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 ffor forfeiture; but no person shall be prose- cuted 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, docu- mentary or otherwise, and no testimony so given or pro- duced shall be received against him upon any criminal investigation, proceeding or trial. New. Added by L. 1910, Ch. 395, in effect June 6, 1910. * See § 37, General Construction Law, post. t So in original. PENAL LAW PROVISIONS 267 ARTICLE 64 Corporations Section 660. Frauds in the organization of corporations. ©61. Frauds in procuring organization, of corporations. 662. Fraudulent issue of stocks and bonds. 663. Acting for foreign corporations not autliorized to do business in this state. 664. Misconduct of officers and directors of stock corpo- rations. 665. Misconduct of directors, officers, agents and employees of corporations. fi66. 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. § 66o. 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 corpora- tion or joint-stock association existing or intended 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 association; or, 2. Signs the name of a fictitious person to any subscrip- tion for or agreement to take stock in any corporation, 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. such subscription or agreement are not to be complied with or enforced. Is guilty of a misdemeanor. 268 PENAL LAW PROVISIONS § 66i. Frauds in procuring organization 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 punishable by imprisonment in a state prison not exceeding ten years. § 662. Fraudulent issue of stocks and bonds. — ^An offi- cer, 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 coun- try, who wilfully and knowingly, with intent to defraud : r. 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 bond 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 tfe create or issue stock or evidences of debt ; or, 2. Reissues, sells, pledges or disposes of, or causes to be reissued, sold, pledged or disposed of, any surrendered 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 exceeding seven years, or by a fine not exceeding three thousand dollars, or by both. PENAL LAW PROVISIONS 269 § 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,'' " insurance," " assurance," " indemnity," " guarantee," " guaranty," " 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 connection with such corporation or otherwise, shall put forth any sign containing said name, or who shall advertise or publish the said company as doing business in this state, directly or indirectly, through agents or otherwise, while such company shall not be authorized under a certificate pro- cured from the secretary of state pursuant to section fif- teen of the general corporation law to-do business in this state, Is guilty of a misderneanor. § 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 9yQ PENAL LAW PROVISIONS I 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 pro- vide 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 withdraw 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 pur- suance of law; or, 7. Sells, or agrees to sell, or is directly or indirectly in- terested in the sale of any share of stock of such corpora- tion, or in any agreement to sell the same, unless at the time of such 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. § 665. Misconduct of directors, officers, agents and em- ployees of corporations. A director, officer, agent or em- ployee of any corporation or joint-stock association who : 1. Knowingly receives or possesses himself of any of its propert)* 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 con- curs in omitting to make any material entry in its books ' or accounts ; or, 3. Knowingly (a), concurs in making or publishing any PENAL LAW PROVISIONS 271 I 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 exhibit 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 £(pplication to the other directors, officers and managers thereof; of, 6. Refuses or neglects to niake any report or statement 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 corporation, other than a moneyed corporation, who shall within this state directly or indirectly, or through agents or represen- tatives transact business under, or in anywise use a cor- porate name or a corporate title with the words " trust," " bank," " banking," " insurance," " assurance," " indem^ nity," " guarantee," " guaranty," " savings," " invest- ment," " loan," " benefit," as a part of such name or title, is guilty of a misdemeanor; provided, 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 hun- dred and four, lawfully using either or any of such words as a part of its lawful corporate title, may lawfully con- tinue to use such corporate title, provided and if it, being a corporation other than a moneyed corporation, shall, wherever the name shall be printed, written, engraved or displayedj add, in legible English characters, of substan- 272 PENAL LAW PROVISIONS tially 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 corpora- tion." § 667. Ptesumption 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 ofthe 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 pres- ent at a meeting of the directors at which any act, pro- ceeding 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 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 concurred in any such violation, if the facts constituting such violation ap- pear on the record or minutes of the proceedings of the board of directors, and he remains a director of the cor- poration for six months thereafter without causing or in writing requiring his dissent from such violation to be entered on such record of minutes. § 668. Misconduct at corporate elections. — Any person who: I. 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 person PENAL LAW PROVISIONS 273 for any sum of money or thing of value, except as ex- pressly 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 re- quired by law to be taken by him as such inspector, or is guilty of any dishonest or corrupt conduct as st^^ch in- spectot. Is guilty of a misdemeanor. » § 669. Misconduct of officers and agents of pipe-line corporations. — Any oflScer, 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 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 ex- ceeding one thousand dollars, or by imprisonment not exceeding six months, or by both. § 670. 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. — 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 18 274 PENAL LAW PROVISIONS 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. New. Added by L. 1910, Ch. 620, in effect June 23, 1910. . § 7^9. Refusal to permit employees to attend election. — A person or corporation who refuses to an employee entitled to vote at an election or tov/n meeting, the privi- lege of attending thereat, as provided by- the election law, or subjects such employee to a penalty or reduction of wages because of the exercise of such privilege, is guilty of a misdemeanor. § 882. Falsely indicating person as corporate officer. — The false making or forging of an instrument or Writing, purporting to have been issued by or in behalf of a cor- poration or association, state or government, and bearing the pretended signature of any person, therein falsely in- dicated as an agent or officer of such corporation, is forgery in the same degree, as if that person were in truth such officer or agent of the corporation or associa- tion, state or government. § 88g. 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 de- stroys any accounts, books of account, records, or other writing, belonging to or appertaining to the business of the corporation, association or partnership or individ- uals; or, 2. With intent to injure or defraud, shall falsely make, alter, forge or counterfeit, or shall cause, aid, abet, assist or otherwise connive at, or be ai 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 PENAL LAW PROVISIONS 275 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, telegram, 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 prem- ises of any membership corporation, or being thereupon, to remain upon such grounds or premises; or, with like intent, 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 : I. 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, 276 PENAL LAW PROVISIONS 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 b®ok of accounts, made, written, or kept by him or under his direction. Is guilty of forgery in the third degree. § 890. Officer of corporation selling fraudulent shares. — An officer, agent or other person employed by any company or corporation existing under the laws of this state, or of any other state or territory of the United 1 States, or of any foreign government, who wilfully and with design 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 or issued, a false, forged or fraudulent paper, writing or instrument, being or purporting to be a scrip, certificate or other evidence of the ownership or transfer of any share or shares of the capital stock of such com- pany 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 punishment prescribed in section eight hundred and ninety-three of this chapter for that offense, 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 affect the market price of the public funds of this state, or of the United * See § 890; ante. PENAL LAW PROVISIONS 277 States, or of any state or territory thereof, or of a foreign country or government, or of tlie 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 merchandise 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, messag'e, 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 People v. GosUn, 67 App. Div. 16, affirmed in 171 N. Y. G2,7. § 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 sit- uation, or who shall offer or hold himself out as in a position to secure or furnish employment without having an order therefor or such employment to be filled or shall misrepresent any other material matter in connec- tion with said employment, work, or situation, and by reason of such statement, offer, holding out or misrep- resentation, any person shall seek the employment, work or situation, in respect to which such statement, offer, holding out or misrepresentation was made, shall be guilty of a misdemeanor. Added by L. 1911, Ch. 575, in eflfect June 30, 1911. 278 PENAL LAW PROVISIONS §. 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 tfen hours labor, in- cluding one-half hour for dinner, to be performed within twelve consecutive hours, by the employees of a street surface and elevated railway owned or operated by cor- porations whose main line of travel or routes lie princi- pally within the corporate limits of cities of more than one hundred 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 five of the labor law; OT, 4. Who shall require or perijiit 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 this 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 peripd, 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 t8 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. If any contractor with the state or a municipal corpo- PENAL LAW PROVISIONS 279 ration shall require more than eight hours for a day's labor, upon conviction therefor in addition to such fine, the contract shall be forfeited at the option of the mu- nicipal corporation. § 1272. Payment of wages. — A corporation or joint- stock 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 t&n thousand dollars for each ofifense. An indictment of a person or corporation oper- ating a steam surface railroad for an ofifense 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 ofifense. Amended by L. 1909, Ch. 205, taking effect April 17, 1909. § 1275. Violations of provisions of labor law.— Any person who violates or does not comply with: 1. The provisions of article three of the labor law, relating to the department of labor; 2. The provisions of article four of the labor law, relating to the bureau of labor statistics ; 3. The provisions of article five of the labor law, relating to the bureau of factory inspection; 4. The provisions of article six of the labor law, relating to factories; 5. The provisions of article seven of the labor law, relating to the manufacture of articles in tenements; 6. The provisions of article eight of the labor law, relating to bakeries and confectionery establishments ; 7. The provisions of article eleven of the labor law, relating to mercantile establishments, and the employ- ment of women and children therein; 8. And any person who knowingly makes a false statement in or in relation to any application made for 280 PENAL LAW, PROVISIONS an employment certificate as to any matter required by articles six and eleven of the labor law to appear in any affidavit, record, transcript or certificate therein pro- vided for, J Is guilty of a misdemeanor and upon conviction shall be punished 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 hun- dred and fifty dollars, or by imprisonment for not more than thirty days or by both such fine and imprisonment ; for a thy-d 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, in effect September 1, 1911. § 1276. Negligently furnishing insecure scaffolding. — A person or corporation employing or directing another to do or perform any labor in the erection, repairing, altering or painting, any 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 two of the labor law, is guilty of a misdemeanor. § 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 two 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 progresses, is guilty of a misdemeanor, and upon con- viction therefor shall be punished by a fine for each PENAL LAW PROVISIONS 281 / offense of not less than twenty-five nor more than two hundred dollars. § 1932. Punishment of corporation convicted of felony. — In all cases where a corporation is convicted of an ofifense 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, part, Penal Code. For remainder of § 13, see § 1931, Penal Law. CODE OF CRIMINAL PROCEDURE PRO- VISIONS. § 335- Pica of guilty, how put in. — A plea of gQilty can only be put in by the defendant himself 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 sumimons, 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 tirrye 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 offense, generally]. " Dated alf the city [or ' town '] of. , the day of , 18 — . G. H., Justice of the peace " [or as the case may be]. § 677. When 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 [282] CODE OF CRIMINAL PROCEDURE PROVISIONS 283 the original to the president, or other head of the corpora- tion, or to the secretary, cashier, or managing agent thereof. § 678. Elxamination of the charge. — At the tiine ap- pointed in the summons, the magistrate must proceed to investigate the change, 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 sufficient cause to believe the corporation guilty of the ofifense 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 giuilty of the oflfense 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 riot less than five days after the issue thereof. The summons may be substantially in the following form: 284 CODE OF CRIMINAL PROCEDURE PROVISIONS Supreme Court, county of (state the proper county or court, as the case hiay 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 offense 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 aippearance of a corporation by counsel to answer an indictment, without the issuance or service of the sumnjpns as above provided. And when an indict- ment shall have been filed against a corporation it may voluntarily appear 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. CODE OF CRIMINAL PROCEDURE PROVISIONS 285 § 682. Fine on conviction, how collected. — When a fine is imposed upon a corporation upon conviction, it may be 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 sequestrat- ing the property of the corporation, as provided by the Code of Civil Procedure. See §§ 952a-g, inclusive, concerning procedure in cases of marked ■ sterling, " coin," coin silver, silver, gold and metal. 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 over work at an increased compensation except upon work by or for the state or a municipal corporation, or by contractors or subcontractors therewith. * * * Amended by L*. 1909, Ch. 292, §§ 1 and 2, in effect May, 1900. The remainder of § 3 does not apply to private corporations. § 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- 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. § 9. Pa3rment 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. Only those provisions of the Labor Law pertaining to corporations are included in this book. [286] LABOR LAW PROVISIONS 287 § lo. C^h pajrment 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 or upon any public work for the state or municipal corpora- tion 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 corpo- ration engaged in carrying on public work under contract with the state or with any municipal corporation of the state, either as a contractor or subcontractor therewith, 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 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 half of the pre- ceding calendar month. See 199 N. Y. 108. 288 LABOR LAW PROVISIONS § 12. Penalty for violation of preceding sections. — 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 commissioner of labor in his name of office in a civil action. Amended by L. 1909, Ch. 206, § 1, taking effect April 17, 1909. LABOR LAW PROVISIONS 289 ARTICLE XIV. Employer's Liability. § 200. Employer's liability for injuries. — When per- sonal injury is caused to an employee who is himself in the exercise of due care and diligence at the time: 1. By reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the serv- ice of the employer and intrusted by him with the duty of seeing that the ways, works, machinery, or plant, were in proper condition; 2. By reason of the negligence of any person in the service of the employer intrusted with any superintend- ence or by reason of the negligence of any person in- trusted with authority to direct, control or command any employee in the performance of the duty of such employee. The employee, or in case the injury results in death, the executor or administrator of a deceased employee who has left him surviving a husband, wife or next of kin, shall have the same right of compensa- tion and remedies against the employer as if the em- ployee had not been an employee of nor in the service of the employer nor engaged in his work. The pro- visioTis of law relating to actions for causing death by negligence, so far as the same are consistent with this act, shall apply to an action brought by an executor or administrator of a deceased employee, suing under the provisions of this article. If an employer enters into a contract, written or verbal, with an independent con- tractor to do part of such employer's work, or if such contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contractor's contract with the employer, such contract or subcontract shall not bar the liability of the em- ployer for the injuries to the employees of such con- 19 290 LABOR LAW PROVISIONS tractor or subcontractor, caused by any defect in the condition of the ways, works, machinery, or plant, if they are the property of the employer or are furnished by him, and if such defect arose, or Ijad not been dis- covered or remedied, through the negligence of the em- ployer, or of some person intrusted by him with the duty of seeing that they were in proper condition. Amended by L. 1910, Ch. 352. Derivation.— L. 1902, Oh. 600, § 1. § 201. Notice to be served. — No action for recovery of compensation for injury or death under this article shall be maintained unless notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days and the action is commenced within one year after the occurrence of the accident caus- ing the injury or death. The notice required by this section shall be in writing and signed by the person injured or by some one in his behalf, but if from physical or mental incapacity it is impossible for the person in- jured to give notice within the time provided in this sec- tion, he may give the same within ten days after such incapacity is removed. In case of his death without hav- ing given such notice, his executor or administrator may give such notice within sixty days after his appointment, but no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury if it be shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby. If such notice does not apprise the employer of*lhe time, place or cause of injury, he may, within eight days after service thereof, serve upon the sender a written demand for a further notice, which de- mand must specify the particular in which the first notice is claimed to be defective, and a failure by the employer to make such demand as herein provided shall be a waiver of all defects that- the notice may contain. LABOR LAW PROVISIONS 291 After service of such demand, as 'herein provided, the sender of such notice may at any time within eight days thereafter serve an amended notice which shall supersede such first notice and have the same effect as an original notice hereunder. The notice required by this section shall be served^on the employer, or if there is more than one employer, upon one of such employers, and may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice or demand may be served by post by letter addressed to the person on whom it is to be served, at his last known place of residence or place of business, and if served by post shall be deemed to fiave been served at the time when the letter containing the same would be delivered in the ordinary course of the post. When the employer is a corporation, notice shall be served by delivering the same or by sending it by post addressed to the office or principal place of business of such corporation. Amended by L. 1910, Ch. 352. Derivation.— L. 1902, Ch. 600, § 2. § 202. Assumption of risks; contributory negligence, when a question of fact. — An employee by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall, in all cases arising after this article takes effect, be considered as in- cluding those risks, and those only, inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employees, and has complied with the laws affecting or regulating such business or occupation for the greater safety of such employees. In an action brought to re- cover damages for personal injury or for death resulting therefrom received after this act takes effect, owing to any cause, including open and visible defects, for which 292 LABOR LAW PROVISIONS the employer would be liable but for the hitherto avail- able defense assumption of risk by the employee, the fact that the employee continued in the service of the em- ployer in the same place and course of*employment after ' the discovery by such employee, or after he has been in- formed of the danger of personal injury therefrom shall not be, as matter of fact or as matter of law, an assump- tion of the risk of injury therefrom, or as negligence con- tributing to such injury. The question whether the em- ployee understood aftd assumed the risk of such injury, or was guilty of contributory negligence, by_his con- tinuance in the same place and course of employment with knowledge of the risk of injury, shall be one of fact, subject to the usual powers of the court in a proper case, to set aside a verdict rendered contrary to the evidence, but an employee, or his legal representative, shall not be entitled under this article to any right of compensa- tion or remedy against the employer in any case where such employee knew of the defect or negligence which caused the' injury and failed, within a reasonable time, to give, or cause to be given, information thereof to the employer, or to some person, superior to himself in the service of the employer, or who had intrusted to him some superintendence, unless it shall' appear on the trial that such defect or negligence was known to such em- ployer, or superior person, prior to such injuries to the employee; or unless such defect could have been dis- covered by such employer by reasonable and proper care, tests or inspection. Amended by L. 1910, Ch. 352. Derivation.— L. 1902, Ch. 600, § 3. • § 202-a. Trial ; burden of proof. — On the trial of any action brought by an employee or his personal represen- tative to recover damages for negligence arising out of and in the course of such employment, contributory neg- ligence of the injured employee shall be a defense to be so plea'ded and proved by the defendant. LABOR LAW PROVISIONS 293 § 203. Defense; insurance fund.— An employer who shall have contributed to an insurance fund created and maintained for the mutual purpose of indemnifying an employee for personal injuries, for which compensation may be recovered under this article, or to any relief society or benefit fund created under the laws of this state, may prove in mitigation of damages recoverable by an employee under this article such proportion of the pecuniary benefit which has been received by such em- ployee from such fund or society on account of such contribution of the employer, as the contribution of such employer to such fund or society bears to the whole contribution thereto. Derivation. — L. 1902, Ch. fiOO, § 4. § 204. Existing rights of action continued. — Every existing right of action for negligence or to recover damages for injuries resulting in death is continued and nothing in this article contained shall be construed as limiting any such right of action, nor shall the failure to give the notice provided for in section two hundre4 and one of this article be a bar to the maintenance of a suit upon any such existing right of action. Derivation.— L. 1902, Ch. 600, § 5. § 205. Consent by employer and employee to compen- sation plan. — When and if any employer in this state and any of his employees shall consent to the compensation plan described in sections two hundred and six to two hundred and twelve, inclusive, of this article, hereinafter referred to as the plan, and shall signify their consent . thereto in writing signed by. each of them or their au- thorized agents, and acknowledged in the manner pre- scribed by law for taking the acknowledgment of a con- veyance of real property, and such writing is filed with the county clerk of the county in which it is signed by the employee, then so long as such consent has not ex- pired or been canceled as hereinafter provided, such em- 294 LABOR LAW PROVISIONS ployee, or in case injury to him results in death, his executor and administrator, shall have no other right of action against the employer for personal injury or death of any kind, under any statute or at common law, save under the plan so consented to, except where personal injury to the employee is caused in whole or in part by the failure of the employee to obey a valid order made by the commissioner of labor or other public authority authorized to require the employer to safeguard his em- ployees, or where such injury is caused by the serious or willful misconduct of the employer. In such excepted cases thus described, no right of action which the em- ployee has at common law or by any other statute shall be affected or lost by his consent to the plan, if such employee-, or in case of death his executor or adminis- trator, commences such action before accepting any benefit under such plan or giving any notice of injury as provided in section two hundred and six hereof. The commencing of any legal action whatsoever at common law or by any statute against the employer on account of such injury, except under the plan, shall bar the em- ployee, and in the event of his death his executors, ad- ministrators, dependents and other beneficiaries, from all benefit under the plan. This section and section two hundred and six to two hundred and twelve, inclusive, of this article shall not apply to a railroad corporation, foreign or domestic, doing business in this .state, or a receiver thereof, or to any person empl6yed by such cor- poration or receiver. Added by L. 1910, Ch. 352, § 3. § 2o6. Lialrility to pay compensation; notice of acci- dent. — If personal injury by accident arising out of and in the course of the employment is caused to the em-- ployee, the employer shall, subject as hereinafter men- tioned, be liable to pay compensation under the plan at the rates set out in section two hundred and seven of this article : provided that the employer shall not be liable in respect of any injury which does not disable the em- LABOR LAW PROVISIONS . 295 ployee for a period of at least two weeks from earning full wages at the work at which he was employed, and that the employer shall not be liable in respect of any injury to the employee which is caused by the serious and willful misconduct of that employee. No proceed- ings for recovery under the plan provided hereby shall be maintained unless notice of the accident has been given to the employer as soon as practicable after the happening thereof and before the employee has volun- tarily left the employment in which he was injured and during siich disability, and unless claim for compensa- tion with respect to the accident has been made within six months from the occurrence of the accident, or in the case of death of the employee., or in the event of his physical or mental incapacity within six months after such death or removal of such physical or mental in- capacity, or in the event that weekly payments have been made under the plan, within six months after such pay- ments have ceased^ but no want of or defect or inac- curacy of a notice shall be a bar to the maintenance of , proceedings under the plan unless the employer proves that he is prejudiced by such want, defect or inaccuracy. Notice of the accident shall apprise the employer of the claim for compensation under this plan and shall state the name and address of the employee injured, the date and place of the accident and in simple language the cause thereof. The notice may be served personally or by sending it by mail in a registered letter addressed to the employer at his last known residence or place of business. Added by L. 1910, Gh. 352, i 3. § 207. Amount of compensation; persons entitled; physical examination. — The amount of compensation under the plan shall be: I. In case death results from injury: (a) If the employee leaves a widow or next of kin at the time of his death wholly dependent on his earnings, a sum equal to twelve hundred times the daily earnings of the employee at the rate at which he was being paid 296 • LABOR LAW PROVISIONS by the employer at the time of the accident, but not more in any event than three thousand dollars. Any wreekly payments previously made under the plan shall be de- ducted in ascertaining such amount payable on death. (b) If such widow or next of kin or any of them are in part only dependent upon his earnings, such sum not exceeding that provided in subdivision a as may be determined to be reasonable .and proportionate to the in- jury to such dependents. (c) If he leaves no widow, or next of kin so dependent in whole or in part, the reasonable expenses of his med- ical attendance and burial, not exceeding one hundred dollars. Whatever sum may be determined to be payable under the plan, in case of death of the injured employee, shall be paid to his legal representative for the benefit of such dependents, or if he leaves no such dependents, for the benefit of the person to whom the expenses of med- ical attendance and burial are due. 2. Where total or partial incapacity for work at any gainful employment results to the employee from the in- - jury, a weekly payment commencing at the end of the second week after the injury and continuing during in- capacity, subject as herein provided, not exceeding fifty per centum of his average weekly earnings when at work on full time during the preceding year during which he shall have been in the employment of the same employer, or if he shall h^ve been employed less than a year, then a weekly payment of not ^exceeding three times the average daily earnings on full time for such less period. In fixing the amount of the weekly payment, regard shall be had to any payment, allowance or benefit which' the workma* may have received from the employer dur- ing the period of his incapacity, and in the case of partial incapacity the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average amount which he is earning or is able to earn in some suitable -employment or business after the acci- LABOR LAW PROVISIONS 297 dent but shall amount to one-half of such difference. In no event shall any weekly payment' payable under the plan exceed ten dollars per week or extend over more than eight years from the date of the accident. Any ■ person entitled to receive weekly payments under the plan is required, if requested by the employer, to submit himself for examination by a duly qualified medical prac- titioner or surgeon provided and paid for by the em- ployer, at a time and place reasonably convenient for the employee, within three weeks after the injury, and there- after at intervals not oftener than once in six weeks. If the workman refuses so to submit or obstructs the same, his right to weekly payments shall be suspended until such examination shall have taken place, and no com- pensation shall be payable under the plan during such period. In case an injured employee shall be m'entally incompetent at the time when any right or privilege ac- crues to him under the plan, a committee or guardian of the incompetent appointed pursuant to law may, on be- half of such incompetent, claim and exercise any such right or privilege with the same force and effect as if the employee himself had been competent and had claimed or exercised any such right or privilege; and no limita- tion of time herein provided for shall run so long as said incompetent employee has no committee or guardian. Added by L. 1910, Ch. 352, § 3. § 2o8. Settlement of disputes. — Any question of law or fact arising in regard to the application of the plan in determining the compensation payable thereunder or otherwise shall be determined either by agreement or ( by arbitration as provided in the code of civil procedure, or by an action at law as herein provided. In case the employer shall be in default in any of his obligations to the employee under the plan, the injured employee or his committee or guardian, if such be appointed, or his ex- ecutor or administrator, may then bring an action to recover compensation under the plan in any court having jurisdiction thereof as on a written contract. Such action shall be conducted in the same manner as an action at 298 LABOR LAW PROVISIONS law for the recovery of damages for breach of a written contract, and shall for all purposes, including the deter- mination of jurisdiction, be deemed such an action. The judgment in such action, in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due and prospectively due under the plan. In such action by an executor or administrator the judgment may provide the proportions of the award or the costs to be distributed to or between the several dependents. If such determination is not made it shall be determined by the surrogate's court by which such executor or ad- ministrator is appointed, in accordance with the terms of this article on petition of any party on such notice as such court may direct. Added by L. 1910, Ch. 352, § 3. § 209. Preferential claim ; not assignable or subject to attachment ; attorney's fee. — Any person entitled to weekly payments under the plan against any employer shall have the same preferential claim therefor against the assets of the employer as now allowed by law for a claim by such person against such employer for unpaid wages or personal services. Weekly payments due under the plan shall not be assignable or subject to attachment, levy or execution. No claim of an attorney for any con- tingent interest in any recovery under the plan for serv- ices in securing such recovery shall be an enforceable lien thereon, unless the amount of the same be approved in writing by a justice of the supreme court, or in case the same is tried in any court, before the justice presid- ing at such trial. Added by L.^910, Ch. 352, § 3. § 210. Cancellation of consent. — When a consent to the plan shall have been filed in the office of the county clerk as herein provided, it shall be binding upon both parties thereto as long as the relation of employer and employee exists between the parties, and expire at the end of such employment, but it may at any time be can- celed on sixty days' notice in writing from either party LABOR LAW PROVISIONS 299 to the other. Such notice of cancellation shall be effect- ive only if served personally or sent by registered letter to the last known post-office address of the party to whom it is addressed, but no notice of cancellation shall be effective as to a claim for injury occurring previous thereto. Added by L. 1910, Ch. 352, § 3. § 211. Reports of compensation plan. — Each employer who shall sign with any employee a consent to the plan shall, within thirty days thereafter, file with the commis- sioner of labor a statement thereof, signed by such em- ployer, which shaH show (a) the name of the employer and his post-office address, (b) the name of the employee and his last known post-office address, (c) the date of and office where the original consent is filed, (d) the weekly wage of the employee at the time the consent is signed; unless such statement is duly filed, such consent of the employee shall not be a bar to any proceeding at law commenced by the employee against the employer. Added by L. 1910, Ch. 352, § 3. § 212. Reports by employer. — Each employer of labor in this state who shall have entered into the plan with any employee shall, on or before the first day of January, nineteen hundred and eleven, and thereafter and at such times as may be required by the commissioner of labor, make a report to such commissioner of all amounts, if any, paid by him under such plan to injured employees, stating the name of such employees, and showing sepa- rately the amounts paid under agreement with the em- ployees, and the amounts paid after proceedings at law, and the proceedings at law under the plan then pending. Such reports shall be verified by the employer or a duly authorized agent in the same manner as affidavits. Added by L. 1910, Cb. 352, | 3. Note. — Sections 215-219g, inelusive, embraced in Article 14a, added by L. 1910, Ch. 674, and constituting the so-oalled Workmen's Compensation in Certain Dangerous Employments, are omitted in this book. Article 14erformed according to the standard • time. § 54. Village. — The term village means an incorporated village. § 55' Women. — The term women includes girls. § 56. Writing and written. — The terms writing and written include every legible representation of letters upon a material substance, except when applied to the signature of an instrument. § 57. Year, common and leap. — For the purpose of com- puting and reckoning the days of the year in the same regular course in the future, every year, the number of which in the Christian era is a multiple of four, is a bis- sextile or leap year consisting of three hundred and sixty- six days, unless such number of the year is a multiple of one hundred and the first two figures thereof treated as a separate number is not a multiple of four, and every year which is not a leap year is a common year consisting of three hundred and sixty-five days. § 58. Year in statute, contract and public or private instrument. — The term year in a statute, contract, -or any public or private instrument, means three hundred and sixty-five days, but the added day of a leap year and the day immediately preceding shall for the purpose of such computation be counted as one day. In a statute, con- tract or public or private mstrument, the term year means twelve months, the term half year, six months, and the term a quarter of a year, three months. 334 GENERAL CONSTRUCTION LAW ARTICLE 3 Ancient Statutes and Resolutions Section 70. Statutes of England and Great Britain inoperative in this state. • 71. Acts .of the legislature of the colony of New York in- operative. 72. Resolutions of the congress of the colony and the con- vention of New York inoperative. § 70. Statutes of England and Great Britain inoperative, in this state. — ^A statute of England or Great Britain shall not be deemed to have had any force or effect in this state since May first, seventeen hundred and eighty- eight. § 71. Acts of the legislature of the colony of New York inoperative. — Acts of the legislature of the colony of New York shall not be deemed to have had any force or effect in this state since December twenty-ninth, eighteen hun- dred and twenty-eight. § 72. Resolutions of the congress of the colony and the convention of New York inoperative. — The resolutions of the congress of the colony of New York and of the con- vention of the state of New York, shall not be deemed to be the laws of this state hereafter. ARTICLE 4 References, Titles and Head Notes Section 80. References to repealed provisions. 81. Titles and head notes. § 80. Refer|fices to repealed provisions. — If any pro- vision of a law be repealed and, in substance, re-enacted, a reference in any law to such repealed provision shall be deemed a reference to such re-enacted provision. § 81. Titles and head notes. — If the title of any article or other division of a statute, or the head note of a section shall be amended or repealed in the body of the statute, or if a new article or other division having a title, or a new GENERAL CONSTRUCTION LAW ' 335 section having a new head note be added to a statute, the corresponding title or. head note, if any, in an abstract of contents at the beginning of the article or other division of the statute shall be deemed to be (correspondingly amended or repealed, although there be no express refer- ence thereto. ARTICLE 5 Eiffect of Repeals! Section 90. Eflfeot of the repeal of a repealing statute. 91. Effect of the repeal of a statute upon amendmenta thereof. 92. Effect of the repeal of an amending statute. 93. Effect of repealing statute upon existing rights. 94. Effect of repealing statute upon pending actions and pro- ceedings. 95. Effect of the repeal of a statute by another statute sub- stantially re-enacting the former. 96. Effect of hyphen in schedule of rejjeals. § go. Effect of the repeal of a repesding statute. — The repeal hereafter or by this chapter of any provision of a statute, which repeals any provision of a prior statute, does not revive such prior provision. §91. Effect of the I'epeal of a statute upon amendments thereof. — The repeal by the Consolidated Laws of a stat- ute includes a statute amendatory of the statute repealed. § 92. Effect of the repeal of an amending statute. — The repeal hereafter or by this chapter of any provision of a statute, which amends a provision of a prior statute, leaves such prior provision in force unless the amendatory statute be a substantial re-enactment of the statute amended. § 93. Effect of repealing statute upon existing rights. — The repeal of a statute or part thereof shall not affect or impair any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or pun- ishment incurred prior to the time such repeal takes effect, but the same may be enjoyed, asserted, enforced, prose- cuted or inflicted, as fully and to the same. extent as if such repeal had not been effected. 336 GENERAL CONSTRUCTION LAW § 94. Effect of repealing statute upon pending actions and proceedings. — Unless otherwise specially provided by law, all actions and proceedings, civil or criminal, com- menced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such pro- visions were not so repealed. § 95. Effect of the repeal of a statute by another statute substantially re-enacting, the former. — •The provisions of a law repealing a prior law, which are substantial re-enact- ments of provisions of the prior law, shall be construed as a continuation of such provisions of such prior law, modi- fied or amended according to the language employed, and not as new enactments. § 96. Effect of h5rphen in schedule of repeals. — When two numbers in a schedule of repeals- oP the Consolidated Laws are connected by a hyphen both such numbers are included as well as all intermediate numbers. ARTICLE 6 Effect of Consolidated Laws Section 100. Effect of consolidation upon laws passed at same session or before consolidation takes effect. 101. Effect of consolidated laws on penal law and civil and criminal codes. § 100. Effect of consolidation upon laws passed at same session or before consolidation takes effect. — No provision of any chapter of the consolidation of the general laws, of which this chapter is a part, shall supersede or repeal by implication any*Iaw passed at the same session of the leg- islature at which any such chapter was enacted, or passed after the enactment of any such chapter and before it shall have taken effect ; and an amendatory law passed at such session or at any subsequent session begun before any such chapter takes effect, shall not be deemed repealed, unless specifically designated in the repealing schedule of such chapter. GENERAL CONSTRUCTION LAW 337 § loi. Effect of consolidated laws on penal law and civil and criminal codes. — The Consolidated Laws shall not be construed to amend, repeal or otherwise aflfect any provi- sion of the penal law, code of civil procedure or code of criminal procedure unless expressly so stated. ARTICLE 7 Application of Chapter Section 110. Application of chapter. § 1 10. Application of chapter. — This chapter is appli- cable to every statute unless its general object^ or the con- text of the language, construed, or other provisions of law indicate that a different meaning or application was in- tended from that required to be given by this chapter. ARTICLE 8 Laws Repealed ; When to Take Effect Section 120. Laws repealed. 121. When to take effect. § 120. Laws repealed. — ^Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is hereby repealed. § 121. When to take effect, — This chapter shall take effect immediately.* Schedule of Laws Repealed. Revised Statutes.. Part i, chapter 8, title 8, section i6 Revised Statutes. . Part i, chapter 19, title i, sections 1-5 Revised Statutes . . Part 2, chapter 4, title 2, section 3 Revised Statutes. . Part 2, chapter 4, title 3, section 9 Revised Statutes.. Part 3, chapter 3, title i, section 10 Revised Statutes.. Part 3, chapter 7, title 3, article 7, sections 61, 62 Revised Statutes. . Part 3, chapter 8, title 17, section 27 Revised Statutes. . Part 3, chapter 10, title 4, section 4 Revised Statutes . . Part 4, chapter 2, title 8, section 16 * Became a law February 17, 1909. 22 338 GENERAL CONSTRUCTION LAW Laws of Chapter Section 1788 46 37 1801 90 28 R. L. 1813... 56 30, second sentence 1828 20 9-11 (2d Meet.) 1828 21 2-15 (2d Meet.) 1830 320 65-67 1848 197 I 1849 261 ' All 1857 •• 536 3 1865 146 All 1870 370 All 1872 544 All 1873 577 All 1873 639 All 1874 321 All 187s 27 All 1876.. 448 29,788,960 1877 416 I, M 176, 214 1877 466 27 1880 178 I, pt. adding § 3343, subds. 6-8, 15, 17, 21-24 to L. 1876, Ch. 448. 1881 fo All 1S81... 4^2 955-957 1881 676 261, 500, 718, subds. 9-15 1882 384 I, pt. amending L. 1881, Ch. 676, § 718, subds. 9-15 1883 372 All 1884 14 All 1886 21 20 1887 289 All 1892 677 All, except last sentence of §24 1894 447 All 1894 448 All 1895 603 All 1897 614 I, except part providing that public offices shall be kept open on all week days; 2, 3 GENERAL CONSTRUCTION LAW 339 Laws of Chapter Section rgoa 39 i, except part providing that public offices shall be kept open on all week days 1907 300 All 340 SPECIAL CONSTRUCTION ACT LAWS OF 1909, CHAPTER 596. AN ACT to prescribe the rules for the construction of the consolidated laws and code amendments reported to the legislature under and in pursuance to«the provisions of chapter six hundred and sixty-four of the laws of nine- teen hundred and four, and also' for the construction of chapter two hundred and forty of the laws of nineteen hundred and nine. Became a law May 29, 1909, with the approval of the Governor. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section i. In construing the consolidated laws and the amendments to the code of civil procedure and the code of criminal procedure reported to the legislature by the board of statutory consolidation constituted under the pro- visions of chapter six hundred and sixty-four of the laws of nineteen hundred and four, entitled "An act to provide for the consolidation of the statutes of the state," and enacted by the legislature of nineteen hundred and nine, and in construing the act amendatory thereof, known as chapter two hundred and forty of the laws of nineteen hundred and nine, for the purpose of determining the effect of any of the provisions or sections thereof on any other provision or section thereof, or on any special law theretofore enacted, the several provisions and sections of such laws and code amendments and said act amenda- tory thereof shall not be considered as having been enacted or re-enacted by the legislature at the time of the passage of >the consolidated laws or such code amend- ments or said act amendatory thereof but as having been enacted as of the various times when such provisions and sections first became laws by any earlier statutes, pro- vided, however, that when any provision of law after its first enactment by the legislature has been amended or re-enacted, then for the purpose of its construction for the determination of its effect on other sections or provi- sions of the consolidated laws, it shall be considered as SPECIAL CONSTRUCTION ACT 341 having been enacted at the date of such amendment or re-enactment. If in any such, consolidated law and such amendments to the code of civil procedure and the code of criminal procedure as enacted by the legislature of nineteen hundred and nine or said act amendatory thereof there shall have been incorporated any provisions of law that have heretofore been superseded or impliedly re- pealed, the incorporation of any such provisions shall not be construed as. a legislative intent to revive such super- seded or repealed provisions, nor shall such incorpora- tion in such consolidated laws be construed to indicate any legislative determination that such provisions had not been theretofore so superseded or repealed. The true purpose and intent of this act is to prescribe that the statute law of the state, so far as it has been reproduced in such consolidated laws and in such amendments to the code of civil procedure and the code of criminal proce- dure, and in said chapter two hundred and forty of the laws of nineteen (hundred and nine, and all special laws in force at the time of the enactment of such consolidated laws, shall be of the same force and effect as they were before the enactment of such consolidated laws or code amendments or said act amendatory thereof. § 2. This act shall take effect immediately. FEES See § 26, Executive Law, Chapter 23, Laws of 1909, constituting Chapter 18 of the Consolidated Laws. Fees of Secretary of State. § 26. Fees. — The secretary of state shall collect the fol- lowing 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. 5. For a certificate under the great seal of the state, one dollar. 6. For recording a certificate, notice or other paper re- quired to be recorded, except as otherwise provided by this section, fifteen cents per folio. He sic sje;); :)c 3|c ^ ^ if 12. For filing and recording the original certificate of incorporation or a railroad corporation for the construc- tion of a railroad in a foreign country, fifty dollars; for filing the original certificates of every other railroad cor- poration, twenty-five dollars ; for filing the original certifi- cate of any o1;her stock corporation, ten dollars ; for filing any original certificate of incorporation drawn under article three of the membership corporations law, ten dollars. [342] FEES 343 13. For filing the certificate of a foreign corporation de- siring to do business in the state, ten dollars. ly. For a certificate under subdivision three of section nine of the general corporation law, ten dollars. No fee shall be collected for copies of records furnished to public officers for use in their official capacity. 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. I See § 3304, Code of Crvii, Pkocedxtbe. § 3304. Fees of county clerks generally.— A eoirnty clerk is en- titled, for the services specified in this section, except where another fee is allowed therefor by special statutory provision, to the follow- ing fees to be paid in advance: For a copy of an order, record or other paper, entered or filed in his office, eight cents for each folio. • • • For recording any instrument, which must or may legally be recorded by him, ten cents for each folio. * • » For filing any paper required' by law to be filed in his office, other than as expressly provided for in this section, six cents. For organization, license, franchise tax, etc., payable to State Treasurer, see §§ 180-182 et seq.. Tax Law, ante. TABLE OF FEES Incorporation. State Treasurer. — Tax of l/20th of 1% (minimum $5) on entire capitalization. Section 180, Tax Law. The tax should be paid in cash or by certified check, post-office or express money-order. In- corporation papers should not be sent to the State Treasurer, who will notify the Secretary of State of payment of tax, before the latter will pass upon papers. Secretary of State. — For filing certificate of incorporation, $10; recording same, 15 cents a folio; certified copy of certificate, 15 cents a folio and $1 for seal; exemplified copy of certificate under great seal of the State, $1, in addition to fees for certified copy. County Clerk. — 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. State Treasurer. — No tax, except in case of increase of capital stock, q. V. Secretary of State. — No fee for filing. Recording fees S3,me as on incorporation. (But see fees on change of name, post.) County Clerk. — Fees are the same as on incorporation, above. (See fees on change of corporate name, post.) Increase or Decrease of Capital Stock. State Treasurer. — Tax of one-twentieth of one per cent, only on amount of increase of capital stock. Secretary of State. — No fee for filing certificate of vote or con- sent of stockholders. Recording fees same as on incorporation, above. County Clerk. — Fees are the same as on incorporation, above. State Comptroller. — Fee for necessary certificate on decrease of capital stock, $1. • Payment of One-Half of Capital Stock. Secretary of State. — For recording certificate of payment, 15 cents a folio. No filing fee. County Clerk. — For filing certificate of payment, 6 cents ; for recording, 10 cents a folio. [344] TABLE OF FEES ' 345 Changing Coipoiate Name. Secretary of State. — For certificate that proposed name is per- missiWe (see § fiO, General Corporation Law), $1; for recording affidavit of publication of order (see § 64, General Corporation Law), 15 cents a folio. No fees for filing the petition for change of name, notice of motion or notice of adjournment thereof to reserve proposed name, or certified copy of order of court thereon, and affidavit of publication (§§ 62 and 63, General Corporation Law). County Clerk.— r- For filing order of court on petition, 6 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 fior filing and recording affidavit of publicaAiou (see § 64, General Corporation Law). Changing Place of Business. See §13, Stock Corporation Law. Secretary of State. — No filing fees ; recording fees, 15 cents a folio. County Clerks. — For filing certificates, 6 cents each; for recording game, 10 cents a folio. ' Consolidation. The fees are the same as on incorporation, but the tax payable to the State is based only on the amount of capital stock in excess of the combined capitalization 9f the consolidated corporations. 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 record- ing, 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, $1 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-eiglith of one per cent, on capital employed in State within three months from date of com- mencement of business. Secretary of State. — On filing papers for authority to do business, $10; for certificate of compliance -with law, $1. No fee is charged 346 TABLE OF FEES for filing revocation of agent's authority and designation of new agent, or notice oi change of agent's office, required by § 16, General Corporation Law. For service of process on foreign eoirporations through Secretary of State, in absence of designation of new agent, $2. (See § 16, General Corporation Law.) Merger. See § 15, Stock Corporation Law. Secretary of State. — For recording certificate required, 15 cents a folio. No fee for filing. Mortgaging Corporate Property. See § 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. — No fee for filing certificate authorizing in- crease of capital stock for conversion into bonds; recording fees, 15 cents a folio. County Clerk. — For filing duplicate of above certificate, 6 cents; recording, 10 cents. County Clerk or Register. — For filing certificate of vote or con- sent to mortgage, 6 cents each; for recording same, 10 cents a folio, Keincorporation. 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 fee as on incorporation. Reorganization. See § 9, Stock Corporation Law. State Treasurer. — Same tax as on incorporation. Secretary of State. — For filing certificate, $10; for recording, 15 cents a folio. County Clerk. — Same fees as on incorporation. Reports. No fees, except to County Clerk. — For filing certificate or report of inspeotors of election, 6 cents; recording fees, 10 cents a folio. TABLE OF ORGANIZATION EXPENSES, ETC. 347 Table of Organization Expenses and Franchise Tax. Capital Organization Tax. Total Expenses.* Annual FranchiBe Tax.t $500 $5 00 - $20 00 $0 75 2,000 5 00 20 00 3 00 2,500 5 00 20 00 3 75 3,000 5 00 20 00 4 50 4,000 5 00.... 20 00 6 00 5,000 5 00 20 00 7 50 6, 000 5 00 20 00 9 00 7,000 5 00 20 00 10 50 7,500 5 00 20 00 11 25 8, 000 5 00 20 00 12 00 9,000 5 00 20 00 13 50 10,000 5 OO 20 00 15 00 12,000 6 OO 21 00 18 00 15,000 7 50 22 50 22 50 20, 000 10 00 25 00 30 00 25,000 12 50 27 50 37 50 40,000 20 00 35 00 60 00 50,000.... 25 00 40 00 75 00 60,000.... 30 00 46 00 90 00 70,000.... 35 00 50. 00 105 00 75,000 37 50 52 50 112 50 80,000 40 00 55 00 120 00 100,000..... 50 00 65 00 150 00 150, 000 75 00 90 00 225 00 200, 000 100 00 115 00 300 00 250,000 125 00 140 00 375 00 3O0, 000 150 OO 165 00 450 00 400,000 200 00 215 00 600 00 500,000 250 00 ■ 265 00 750 00 700,000 350 00 365 00 1, t)50 00 1,000,000 50O 00 515 00 1, 500 00 1,300,000 750 00 765 00 2, 260 00 2,000,000 1,000 00 1,015 00 3,000 00 10,000,000 5,000 00 5,015 00 15,000 00 * " Total Expenses " include organization tax, fees to Secretary of State, etc. tSiz per cent, dividend basis. See S 182, Tax Law. FEDERAL CORPORATION TAX LAW AN ACT to provide revenue, equalize duties and encourage the in- dustries of the United States, and for othSr purposes.* Sec. 38. That every corporation, joint stock company or association, organized for profit and having a capital stock represented by shares, and every insurance company, now or hereafter organized under the laws of the United States or of any State or Territory of the United States or under the Acts of Congress applicable to Alaska or the District of Columbia, or now or hereafter organized under the laws of any foreign country and engaged in business in any State or Ter- ritory of the United States or in Alaska or in the District of Columbia, sliall be subject to pay annually a special excise tax with respect to the carrying on or doing business by such corporation, joint stock company or association, or insurance company, equivalent to one per centum upon the entire net income over and above five thousand dollars received by it from all sources during such year, exclusive of amounts received by it as dividends upon stock of other corporations, joint stock companies or associatious, or insurance com- panies, subject to the tax hereby imposed; or if organized under the laws of any foreign country, upon the amount of net income over and above five thousand dollars received by it from business trans- acted and capital invested within the United States and its Terri- tories, Alaska, and the District of Columbia, during such year, exclu- exclusive of amounts received by it as dividends upon stock of other corporations, joint stock companies or associations, or insurance companies, subject to the tax hereby imposed: Provided, however. That nothing in this section contained shall apply to labor, agricul- tural or horticultural organizations, or to fraternal beneficiary societies, orders, or associations operating under the lodge system, and providing for the payment of life, sick, accident, and other benefits to the members of such societies, orders, or associations, and dependents of such members, nor to domestic building and loan associations, organized and operated exclusively for the mutual benefit of their members, nor to any corporation or association organized and opeftited exclusively for religious, charitable, or educa- tional purposes, no part of the net income of which inures to the benefit of any private stockholder or individual. Second. Such net income shall be ascertained by deducting from the gross amount of the income of such corporation, joint stock com- pany or association, or insurance company, received within the. year from all sources, (first) all the ordinary and necessary expenses • See Chapter 6, Vol. 36, Statutes at Large. Became a law August 6, 1909. [348] FEDERAL CORPORATION TAX LAW 349 actually paid within the year out of income in the maintenance and operation of its business and properties, including all charges such as rentals or franchise payments, required to be made as a condition to the continued use or possession of property; (second) all losses actually sustained within the year and not compensated by insurance or otherwise, including a reasonable allowance for depreciation of property, if any, and in the case of insurance companies the sums other than dividends, paid within the year on policy and annuity contracts and the net addition, if any, required by law to be made within the year to reserve funds; (third) interest actually paid within the year on its bonded or other indebtedness to an amount of such bonded and other indebtedness not exceeding the paid-up capital stock of such corporation, joint stock company or association, or insuraJice company, outstanding at the close of the year, and in the case of a bank, banking association or trust company, all interest actually paid by it within the year on deposits; (fourth) all sums paid by it within the year for taxes imposed under the authority of the United States or of any State or Territory thereof, or imposed by the government of any foreign country as a condition to carrying on business therein; (fifth) all amounts received by it within the year as dividends upon stock of other corporations, joint stock companies or associations, or insurance companies, subject to the tax hereby imposed: Provided, That in the case of a corporation, joint stock company or association, or insurance company, organized under the laws of a foreign country, such net income shall be ascertained by deducting from the gross amount of its income received within the year from business transacted and capital invested within the United States and any of its Territories, Alaska, and the District of Co- lumbia, (first) all the ordinary and necessary expenses actually paid within the year out of earnings in the maintenance and operation of its business and property within the United States and its Ter- ritories, Alaska, and the District of Columbia, including all charges such as rentals or franchise payments required to be made as a condition to the continued use or possession of property; (second) all losses actually sustained within the year in business conducted by it within the United States or its Territories, Alaska, or the District of Columbia not compensated by insurance or otherwise, including a reasonable allowance for depreciation of property, if any, and in the case of insurance companies the sums other than dividends, paid within the year on policy and annuity contracts an^ the net addition, if any, required by law to be made within the year to reserve funds; (third) interest actually paid within the year on its bonded or other indebtedness to an amount of such bonded and other indebtedness, not exceeding the proportion of its paid-up capita] stock outstanding at the close of the year which the gross amount of its income for the year from biisiness transacted and capital invested within the United States and any of its Territories, Alaska, and the District of Columbia bears to the gross amount of its income 850 FEDERAL CORPORATION TAX LAW derived from all sources within and without the United States; (fourth) the sums paid by it within the year for taxes imposed under the authority of the United States or of any State or Territory thereof; (fifth) all amounts received by it within the year as dividends upon stock of other corporations, joint stock companies or associations, and insurance companies, subject to the tax hereby im- posed. In the case of assessment insurance companies the actual deposit of sums with State or Territorial oflSoers, pursuant to law, as additions to guaranty or reserve funds, shall be treated as being pay- ments required by law to reserve funds. Third. There shall be deducted from the amount of the net income of each of such corporations, joint stock companies or associations, or insurance companies, ascertained as prbvided in the foregoing para- graphs of this section, the sum of five thousand dollars, and said tax shall be computed upon the remainder of said net income of such cor- poration, joint stock company or association, or insurance company, for the year ending December thirty-first, nineteen hundred and nine, and for each calendar year thereafter; and on or befoVe the first day of March, nineteen hundred and ten, and the first day of March in each year thereafter, a true and accurate return under oath or affirmation of its president, vice-president, or other principal officer, and its treasurer or assistant treasurer, shall be made by each of the corporations, joint stock companies or associations, arid insurance companies, subject to the tax imposed by this section, to the collector of internal revenue for the district in which such corporation, joint stock company or association, or insurance company, has its principal place of business, or, in the case of a corporation, joint stock com- pany or association, or insurance company, organized under the laws of a foreign country, in the place where its principal business is carried on within the United States, in such form as the Commis- sioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe, setting forth, (first) the total amount of the paid-up capital stock of such corporation, joint stock company or association, or insurance company, outstanding at the close of the year; (second) the total amount of the bonded and other indebted- ness of such corporation, joint stock company or association, or insurance company at the close of the year; (third) the gross amount of the income of such corporation, joint stock company or association, or insurance company, received during such year from all sources, and if organized under the laws of a foreign country the gross amount of its income received within the year from business transacted and capital invested within the United States and any of its Territories, Alaska, and the District of Columbia; also the amount received by such corporation, joint stock company or asso- ciation, or insurance company, within the year by way of dividends upon stock of other corporations, joint stock companies or associa- tions, or insurance companies, subject to the tax imposed by this section; (fourth) the total amount of all the ordinary and necessary FEDERAL CORPORATION TAX LAW 351 expenses actually paid out of earnings in the maintenance and operation of the business and properties of such corporation, joint stock company or association, or insurance company, within the year, stating separately all charges such as rentals or franchise payments required to be made as a condition to the continued use or possession of property, and if organized under the laws of a foreign country the amount so paid in the maintenance and operation of its business within the United States and its Territories, Alaska, and the District of Columbia; (fifth) the total amount of all losses actually sustained during the year and not compensated by insurance or otherwise, stating separately any amounts allowed for depreciation of property, and in the case of insurance companies the sums other than divi- dends, paid within the year on policy and annuity contracts and the net addition, if any, required by law to be made within the year to reserve funds; and in the case of a, corporation, joint stock company or association, or insurance company, organized under the laws of a foreign country, all losses actually sustained by it during the year in business conducted by it within the United States or its Terri- tories, Alaska, and the District of Columbia, not compensated by insurance or otherwise, stating separately any amounts allowed for depreciation of property, and in the case of insurance companies the sums other than dividends, paid within the year on policy and annuity contracts and the net addition, if any, required by law to be made within the year to reserve fund; (sixth) the amount of interest actually paid within the year on its bonded or other indebted- ness to an amount of such bonded and other indebtedness not exceed- ing the paid-up capital stock of such corporation, joint stock company or association, or insurance company, outstanding at the close of the year, and in the case of a bank, banking association or trust com- pany, stating separately all interest paid by it within the year on deposits ; or in case of a corporation, joint stock company or associa- tion, or insurance company, organized under the laws of a foreign country, interest so paid on its bonded or other indebtedness to an amount of such bonded and other indebtedness not exceeding the proportion of its paid-up capital stock outstanding at the close of the year, which the gross amount of its income for the year from busi- ness transacted and capital invested within the United States and any of its Territories, Alaska, and the District of Columbia, bears to the gross ' amount of its income derived from all sources within and without the United States; (seventh) the amount paid by it within the year for taxes imposed under the authority of the United States or any State or Territory thereof, and separately the amount so paid by it for taxes imposed by the government of any foreign country as a condition to carrying on business therein; (eighth) the net income of such corporation, joint stock company or associa- tion, or insurance company, after making the deductions in this section authorized. All such returns shall as received be transmitted forthwith by the collector to the Commissioner of Internal Revenue. 352 FEDERAL CORPORATION TAX LAW Fourth. Whenever evidence shall he produced before the Commis- sioner of Internal Revenue which in the opinion of the commissioner justifies the belief that the return made by any corporation, joint stock company or association, or insuraace company, is incorrect, or whenever any collector shall report to the Commissioner of Internal Revenue that any corporation, joint stock company or association, or insurance company, has failed to make a return as required by law, the Commissioner of Internal Revenues may require from the corpora- tion, joint stock company or association, or insurance company making such return, such further information with reference to its capital, income, losses, and expenditures as he may deem expedient; and the Commissioner of Internal Revenue, for the purpose of ascertaining the correctness of such return or for the purpose of making a return where none has been made, is hereby authorized, by any regularly S.ppointed revenue agent specially designated by him for that purpose, to examine any books and papers bearing upon the matters required to be included in the return of such corporation, joint stock company or association, or insurance company, and to require the attendance of any officer or employee of such corporation, joint stock company or association, or insurance company, and to take his testimony with reference to the matter required by law to be Included in such return, with power to administer oaths to such person or persons; and the Commissioner of Internal Revenue may also invoke the aid of any court of the United States having jurisdiction to require the attend- ance of such officers or employees and the production of such books and papers. Upon the information so, acquired the Commissioner of Internal Revenue may amend any return or make a return where none has been made. All proceedings taken by the Commissioner of Internal Revenue under the provisions of this section shall be subject to the approval of the Secretary of the Treasury. . Fifth. All returns shall be retained by the Commissioner of In- ternal Revenue, who shall make assessments thereon; and in case of any return made with false or fraudulent intent, he shall add one hundred per centum of such tax, and in case of a refusal or neglect to make a return or to verify the same as aforesaid he shall add fifty per centum of such tax. In case of neglect occasioned by the sickness or absence of an officer of such corporation, joint stock com- pany or association, or insurance company, required to make said return, or for other sufficient reason, the collector may allow such further time for making and delivering such return as he may deem necessary, not exceeding thirty days. The amount so added to the tax shall be collected at the same time and in the same manner as the tax originally assessed unless the refusal, neglect, or falsity is discovered after the date for payment of said taxes, in which case the amount so added shall be paid by the delinquent corporation, joint stock company or association, or insurance company, immediately upon notice given by the collector. All assessments shall be made and the several corporations, joint stock compajiies or associations, FEDERAL CORPORATION TAX LAW 353, or insurance companies, shall be notified of the amount for which they are respectively liable on or before the first day of June of each successive year, and said assessments shall be paid on or before the thirtieth day of June, except in cases of refusal or neglect to make such return, and in cases of false or fraudulent returns, in which cases the Commissioner of Internal Revenue shall, upon the discovery thereof, at any time within three years after said return is due, make a return upon information obtained as above provided for, and the assessment made by the Commissioner of Internal Reve- nue thereon shall be paid by such corporation, joint stock company or association, or insurance company immediately upon notification of the amount of sued assessment; and to any sum or sums due and unpaid after the thirtieth day of June in any year, and for ten days after notice and demand thereof by the collector, there shall be added the sum of five per centum on the amount of tax unpaid and interest at the rate of one per centum per month upon said tax from the time the same becomes due. Sixth. When the assessment shall be made, as provided in this section, the returns, together with any corrections thereof which may have been made by the commissioner, shall be filed in the office of the Commissioner of Internal Revenue and shall constitute public records and be open to inspection as such. Seventh. It shall be unlawful for any collector, deputy collector, agent, clerk, or other officer or employee of the United States to divulge or make known in any manner whatever not provided by law to any person any information obtained by him in the discharge of his official duty, or to divulge or make known in any manner not provided by law any document received, evidence taken, or report made under this section except upon the special direction of the President; and any offense against the foregoing provision shall be a misdemeanor and 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. Eighth. If any of the corporations, joint stock companies or asso- ciations, or insurance companies, aforesaid, shall refuse or neglect to make a return at the time or times hereinbefore specified in each year, or shall render a false or fraudulent return, such corporation, joint stock company or association, or insurance company, shall be liable to a penalty of not less than one thousand dollars and not exceeding ten thousand dollars. Any person authorized by law to make, render, sign, or verify any return who makes any false or fraudulent return, or statement, with intent to defeat or evade the assessment required by this section to be made, shall be guilty of a misdemeanor, and shall be fined not exceeding one thousand dollars or be imprisoned not exceeding one year, or both, at the discretion of the court, with the costs of prose- cution. 23 354 FEDERAL CORPORATION TAX LAW All laws relating to the collection, remission, and refund of inter- nal-revenue taxes, so far as applicable to and not inconsistent with the provisions of this section, are hereby extended and made applica- ble to the tax imposed by this section. Jurisdiction is hereby conferred upon the circuit and district courts of the United States for the district within which any person summoned under this section to appear to testify or to produce books, as aforesaid, shall reside, to compel such attendance, produc- tion of books, and testimony by appropriate process. * * » # #■* ♦ » * * * Sec. 42. That unless otherwise herein specially provided, this Act shall take effect on the day following its passage. [Approved. Signed five minutes after 5 o'clock p. m., August 5, 1909.] FORMS. FORM No. 1. Certificate of Incorporation. See § 2, Business Corporations Law. Cektificate of Incorpobation of the Company. We, the undersigned, desiring to form a "corporation under tlie laws of the State of New York, piursuant to the provisions of the Business Corporations Law, aJl 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 Vork, do hereby certify that : 1. The name of the proposed corporation ia 2. The purpose [or purposes] of said corporation is [are] 3. The amount of capital stock is dollars, of whici dollars is common stock [amd dollars i« preferred stock]. ^ State classification and character of preferred stock, if any, thus] : Said preferred stock shall be entitled to an annual cumulative dividend of per cent. ( % ) payable semi- annually on the days of and of each year before any dividends are paid on the common stock, and after said common stock has in any one year received a dividend of per cent. ( % ) , to participate equally with said common stock, share and share alike, in all further dividends that may be declared during such year until said preferred stock has received a total dividend for that year up to but not exceeding per cent. ( %) ; and such preferred stock shall be entitled to preference in the event of dis- solution or liquidation of the corporation. 4. Said capital stock shall consist of shares, of the par value of dollars [not less than fvce nor more than one hundred dollars]. The amount of capital with which said corpora- tion will begin business is [state amount, not less than five hundred dollars] . 5. The principal business oiBce is to be located in the Borough of , City of ' , County of ', in the State of New York. 6. The duration of said corporation is to be years. [Perpetual if no term is stated. § 11, suid. 1, General Corporation Law.] 7. The number of directors is [specify any number not less than three]. * If it is desired to form a, fuU liability corporation under I 6 of the Business Cor- porations Law, the words " full liability " should be inserted before " corporation." [355] 356 FORMS 8. The names and post-ofSce addresses of the directors for the first year are as follows: Names of Directors. Post-office Addresses. 9. The names and post-ofBce 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. [Optional.'] — ^Pvirsuant to section 52 of the Stock Corporation Law, this Corporation shall have power to purchase, acquire, hold and dispose of the stocks, bonds and other evidences of indebtedaiess of any corporation, domestic or foreign, and issue in exchalnge there- for its stock, bonds or other obligations. In witness whereof, we have made, signed and acknowledged this certificate, this day of , 19 . [At least three subscribers must sign.] State of New York, 1 yss.: County of j On this day of , 19 , 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. The certificate of incorporation may contain any provision for the regulation of the business and the conduct of the affairs of the cor- poration, 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 performance of any duty imposed by law. See § 10, subd. 2, General Corporation Law. Directors need not be stockholders if the oertificate of incorpora- tion or the stockholders' by-laws so provide. See § 25, Stock Cor- poration Law. FORMS 357 Directors' meetings may be held anywhere unless the certificate or the by-laws specifically require thiem to be held within the steute. 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 Oorporation Law. This section has been construed by the Attorney-General to apply to common as well as to preferred stock. See note to § 24, General Corporation Law, ante. In case cumulative , voting is desired, add the following clause: "At all elections of directors of tlie corporation, each stockholder shall be entitled to ■aia 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 ajnong the number so to be voted for, or any two or more of rthem as he may see fit." See § 24, General Corporation Law. Stock issued for the purchase of property may be authoi-ized Tiy the certificate of incorparatiom. 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 tlie foregoing certificate befote the word corporation. See § 6, Business Corporataoes Law. The certificate of incorporation may provjde 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 winieh it is executed, a county clerk's certificate of the authority of the ofiicer taking the acknowledgment should be attached. For provisions relative to filing and amount of fees, see Table of Fees, post. GENERAL PURPOSE CLAUSES. The purpose for which it is formed is to transact a general business; to manufacture, produce, buy, sell, import, ejqjoirt, lease, exchange, hire, let, invest in, mortgage, trade and deal lin and otherwise acquire and dispose of goods, wares and mer- chandise and property of every kind, class, nature and description, except bills of excliange, 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 in real estate, without limit as to amount or value within or without the State of New York, and in 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. 358 FORMS The corporation shall hav© the power to carry on any of the above businesses or do any of the acts or things hereinbefore enumerated and have one or more offices and unlimitedly and without restriction to hold, puirohasB, leaae, miortgage and convey real and personal property in the State of New York, or in any oitfier State, Disitrict, Territory, Colony or dependency, posseasdons or territorial acquisi- tions of the United States or in any foreign country, subject only to the requirements and restriotions of the laws of such other State, District, Territory, Colony or dtependency, 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 heiteby expressly provided that the company shall have also the following powers, thiat is tp say: (■a) To the same extent as natural persons might or could do, to purchase, or otherwise, to bold, 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 would, real estate and personal property and any interest or right therein. ' ib) To acquire the good will, and to take over the whole or any part of the assets and liabilitiea of any per^n, 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 paibent 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 siuch property, right or information so acqwired; and with a view to the working and deveJiaping of the same to carry on any business whether manu- facturing, merohandisimg, mining or otherwise. (d) To do every thdng necessary, advisable or proper in order to accomplish any of the purposes and objects herein enumerated, or which sihall at anjwtime appear oomducdve or expedient for the pro- tection or beneiit of the corporaAdon, either as holders of, or inter- ested in any property, and in general to carry on any business, whether merchandising, manufacturing, contracting, constructing, mining or otherwise. FORMS 359 ♦ (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 oorpora;tion 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 ito derive iprofit from the loan and use of money; a railroad comipany 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) T3he corporation shall also have power to coinduot 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.* * See § 2, Business Corporation Law. 360 FORMS FORM No. Z. Subscription Agreement. Capitai. Stock, $ Number of Shakes, Pae Valxje, $ We, the undersigned, hereby subscribe for aiid agree to take at par value 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 of our sub- scriptions is payable in cash, as follows: [State times of pay- ment.'] Dated, , 19 . Names Addresses Number of shares FOSM No. 3. Certificate of Payment of One-half of Capital Stock. See § 5, Business Corporations Law. State of New York, 1 County of j ' We, the undersigned, a majority of the directors of the Company, do hereby certify: That 'tihe capital stock of isaid company is dollars, and tlhat 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 witttess whereof, we have executed this certificate this day of , 19 . Majority of Directors. ' See I 55, Stock Corporation Law. FORMS 361 State of New Yokk, County of i rss. : On this day of > 19 , before me personally came [names of directors signing certificate}, to me known, and known to me to be tlie individuals described in and who executed the foregoing certificate, and they severally acknowledged to me that they executed the same. State of New Yoke,"] County of J"*'"' [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, amd tliat hie, the said , is the thereof, and that the above certificate is true. Sworn to before me, this day of , 19 . Note. — § 53 of the Stock Corporation Law provides that " at the tinie of subscribing every subscriber whose subscription Is payable In money shall pajr 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." 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. 4. Amended Certificate to Correct Errors, Omissions, Etc. See § 7, General Corporation Law. Amended Cebtificatb of the Compant. We, the undersigned incorporators [or directors'] of the Company, do hereby make and. file this amended certificate, pursuant to § 7 of the General Corporation Law, for the purpose of [1. Correcting cm informality in said certificate as folknvs:] [2. Omitting from said certificate the following matter not au- thorised by law:] [3. Correcting a defect in the ackfioioledgment of the original certifijcate of incorporation as follows:] 362 FORMS In witness whereof, we have executed this amended certificate in duplicaite. ' Dated tiliis day of , 19 . Note. — Add acknowledgment as in Form No. 1. FORM No. 5. By-Laws. See §§ 11, 30 and 34, General Corporation Law. BY-LAWS OF THE COMPANY.* Abticle I. — Directors. § 1. The numiber of directors of this company shall be all of whom shall be eleoted by ballot by the stockholders who shall attend in ■person or by proxy, at the anmual meeting of the company, and each dineotor sihall be elected to serve for the term of one year. [One-fourth only of the dineotors need be eleoted annually. The terms of office therefore may be regulated bo that only this portion will expire each; year. Directors need mot be stockholders, if the certificate of incorporation or a stockholdiers' by-law so provide. See page 33, ante.] § 2. Vacanoies in the' board of directors oocurring during the year shall be filled by a miajority vote of the remaining members of the board at any regular meeting of the board or at any special meeting cial'Ited for ithe purpose of filling such vacancy. § 3. The board of directors- shall meet on the first Monday of every mionth, and whenever caLlted together by the president. On the TOTitteu request of lany director the secretary shall call a 'special meeting of .the board. A m,ajoiility of the board SihaJil constitute a quorum for the transaction of business. i Article II.— Officers. § 1. The board * directors, immediately after each annual meet- ing ahalll elect by balilot the officers of the company for the emsuing year, land a majority vote of the whole number of directors shall be necessary for the election of each of said officers. § 2. The ofiicers of the oompany shall be a president, vice-presi- dent, itreBflurer, secretary and assistant 'secretary. § 3. The president sibaM preside at all meetings of the board of direotoiis, and shall act as tempoirary chairman at, and call to order, all mieetings of the stockholders; and he shall, under the control of * See § 45, Stock Corporation Law. FORMS 363 the diieobars of the oompany, have the general maanagement of its affairs and shall perfarm all the duties incidental to his office. § 4. The vice-president shall, in the absence or incapacity of the president, perfprm the duties of that office. § 5. The treasurer shall have the custody of, and be responsible for, all moneys, papers, books and accounts of the corporaition, save only such papers, books amid 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 hiis bank account in the name of tlile, company, and shall exhibit Ms books and aooumts to any director upon appiioation ait the office of the company a/t any time during ordinary business hours; he shall record all transfers of stock and cancel and preserve all oertifleates of stock transferred; and at each annual meeting of stockholders shall present a full statement of the affairs of the company. He shall also keep a book carataining the names, alphabetieally arranged, of all persons who are stockholders of this company, showing their places of resddenoe, the number of shares of stock held by them reapeotivlely, and the time when they became the owners of suoh shares, and the amount of mioney paid thereon; and shall gemerally perform all the duties appertaining to his office. [Provisions requir- ing a bond should be beire linserted'if desired.] § 6. Tihe secretary shall keep a record, in proper books provided for that purpose, of all the meertings 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- piiny as the board of directois shall direct; he shall notify the di- rectors and stockholders of their respective meetings; he shall attend to tlie giving and serving of all notices of the company, and shall in general do and perform all the duties appentaining 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 tlie company during the .year may be filled by a majority vote of the directors at any regular metoting of ihe board, oir at any special meeting called for the pur- pose of filling sueh vacancy. Article III. — Meetings. § 1. The annual meeting of- the company shall be held at the office lof .the company on the first Thursday of Jaaiuary of each year, at twelve o'clock, noon, and the secretary shall send through the post- office, at least ten days before such meietdng, a notice thereof, ad- dressed to each stockholder at his lasrt-known post-office address, in addition to aiobioe required by law to be published. 364 FORMS § 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 ait such mteeting, and to be served personally or sent through the post-office, addressed to each stockholder at his last known post-office address. The direetoiis shall also call upon like notice a special meeting of stockholders when- ever stockholders representing ome-third of the capital stock of the oompany require it. No busines other than that specified in the call for the meetii^ 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. Aeticle IV. — Inspectors of Election. § 1. Two inspeotors of election shaLl be chosen at each annual meeting of the oampamy 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 lim 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 all instrumeinits '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-lawe may be amended at any amnuaJ or special meeting of stockholders called in conformity with Article III upon ii majority vote of the stockholders present at such meeting. The foregoing form is suggestive merely. Additional provisions anjd alterations to ooirrespond with particular needs should be made. FORMS 365 FORM No. 6. 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 iState, territory or country] 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 tlie 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 oceupation] 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 , State 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 whebeof, the said Company has' caused this certiiicate to be executed by its president [or vice-president], and its .corporate seal to be hereto affixed on this day of , 19 . [COBPOKATE SEAL.] COMPANY, By [President or Vice-President.] [Add acknowledgement as in Form No. IfO.] Veeificatiqn of Copy of Charteb to be Attached. State of New York, County of , '■ , being duly sworn, says that he is the of the Company, and that the copy of the charter or certificate of incorporation of the said Company hereto annexed is a true copy thereof. Sworn to before me this day of , 19 . * Other than a moneyed corporation. See § 15, General Stock Corporation Law. 366 FORMS Consent op Pekson Designated. State of New York, County of , ** -■ I, , residing at , and having an office 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 Yoek, County of , **•* On the day of , 19 , before me personally come [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 op 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 designee] is at No. " street. Borough of , in the City of , State of New York, which is also the principal place of business of said Company in the State of New York. The consent of said to the above designation is iiereto 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, [cobpobatb seal.] By [President or Vice-President.'] 9 [Add acknowledgment as in Form No. J^O, a/nd consent and acknowledgment of new designee, as ahove.] FORMS 367 FORM No. 7. Voting Trust Agreement. See § 25, General Corporaition Law. This agbeement, miade 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 tihe stoekholdiera ) , parties of the first part, and A. B., C. D., ■smd K. 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 tihe 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 the company to said trustees, and duly assigned by them in blank, agrees for himself and not for the otliers, but to and with the others aaid said parties of the second part, as follows: 1. The said shares of capital stock' Bhall remain on deposit with tlie depositary above named for the full period of five years+ from the day of , 19 , viz. : until the day of , 19 , except as hereinafter provided. 2. Thai 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 amy anmual, special, or other meeting of the stock- holders, convened for any purpose whatever. 3. The Trust Company, depositary designated hereunder, shall issue to the said stockholders certificates of beneficial interest in such deoioonination, and made out in the name or names of such person or persons, corponatioin or corporations, as the depositing oertifieaite hoJders may direct, and which certificate of beneficial interest shall be in soibstantially ' the form fallowing, to wit: Ho. - Shaees. CERTIFICATES OF TRUST COMPANY, FOR THE DE- POSIT OF THE STOCK OF THE COMPANY. Trust Company, having received on deposit certain certificates of stock of the Company of the par value of one hundred 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. F., trustees to which agrteement the holder hereof assents by receiving this certifi- cate. By permission from Birdseye's Clerks' and Conveyancers' Assistant, Baker, Voor^ Iiis & Co., Publishers. tSee § 25, General Corporation Law. 368 FORMS HeeeSt certifies, that is entitled, subject to the pro- A-iisions of said agreement, to an uindivided equitable interest in the said deposited Shares, equivialent in amount to the proportion that the number of shares for which this certificate is issued shall bear tio 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 to a pro rata proportion ol the price paid to said trust company, if said shares are siold as pro- vided in said agreement. Upon the termination of the trust upon which the said stock was deposited, the holder hereof will he entitled to receive from this company, upon surrender of this certificate, duly indorsed, a certifi- cate for Shares of the capital stock of the said Company so deposited, unless said deposited certificates shall have been sold, as provided in said agreement, and thfe purchase money paid to said trust company; in which event the holder hereof will be enrtiitled, upon like surrender, to receive, in lieu of his saiid ehaires, his pro rata propartio^n of the said pur- chase money so paid to this company. Tli© interst in said stock represented by this certificate is assignable only by transfer on the books kept by the said trust company for that purpose, by the holder heif the said certificates of benefioiaJ initerest, for sucli oonsideration in m'oney as the said ninety per cent, may agree upon, and vi'hen so agreed upon, the trust company sbaJJ be notified thereof in writing, siigned by all of the trustees. Upon receipt of suah 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. 6. The siaid trustees shall and are hereby .authorized to collect any and aJJ) dividend or dividends that may accrue upon the said FORMS 369 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 tlie 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 remaining 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 fnrustee shall have, and may join in exercising, the power of siale and notification in article fifth hereof, as thereim proviided, amd all other powera and trusts here- under. 8. The Trust Oompany designia'ted a.s 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 trust hereby created. It and its successors shall receive la reasoniable 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, land as aforesaid. It or any isuccessor may resign thia trust at 'any time by giving thirty days' written raotioe 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 dome by them, or amy of them, in good faith, nor for the act of any lagent or attorney employed by tihem in the execution of the trust. 10. In case of the resiigmation of the trust company, or its refusal to continue to .act as trustee, or its removal from the trust, a successor trust company trustee, for the purpose of executing thia trust, may be appointed by a majority of the trustees then acting hereunder. 11. The trustees shall 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 shares deposited with the trust company herein, shall deter- mine on the day of , 19 , or sooner, upon con- eent in writing of the trustees delivered to land lodged with the said 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 370 FORMS hereunder, shall be disttributed among the registered 'holders of the said stock trust certificates of beneficial interest, pro rata, upon the surrender of such stock tnist certificates of beneficial Sniterest, duly indorsed, to the trust company. Xhia ansitrument, or ajny other paper im 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 aqknowl- edged. In witness WHiaiEor, 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 affixing their signatures thereto. A. B., C. D., E. F.. VOTINO Tbustees, SlQCKHOLDEBS. FORM Wo. 8. Proxy. See § 26, General Oorporaition Law.* Know all men by these peesents. 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 speoiaU meeting of stockholders of the Company, to be held on the day of , 19 , and at lany adjourned meet- ing thereof; and I hereby revoke all proxies heretofore given by me. In witness wheeeop, I have hereunto set my hand and seal this day qf , 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 . FORMS 371 FORM No. 9. Petition to Set Aside Election of Directors. See § 32, General Corporation Law. In TiiE Matter op The Election op Dieectoes op THE Company. To the Supreme Court: The petitiodi of , a stocbholder of the Company, a corporaition, 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 husiness'], and is still engaged in such corporate business. II. That itihe principial buisinese office of said Company is located art III. Your petitioner states that on the day of , 19 , at [state place'\ an election of directors of said Oompany was pretended t» be held, at which the following named persons are al- leged to ihave been elected directors: ; thait said per- sons assumed to be directoirs by reason of such election, and have organized and now claim to act as the board of directors of siueh. company. IV. That aninexed hereto and marked Exhibit is a true copy of the record of the proceedings of suoh 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 siaid Company, owning shares of its- capital stock, .and that he attended and objeoted to said illegal election. VII. That your petitioner is aggrieved by and complains of said election and the proceedings, acts and matters touching the siame.^ VIII. That days' notice of this application has been- duly .served upon the adverse parties and to those to be affeoted thereby, as well as to said Company. Your petitioner prays that this court proceed in a summary way to hear the aflSdavits, proofs and allegations of the parties hereto, or otherwise inquire into the matters or causes of complaint, and establish a new election; or that the court make such order and give such relief as right and justice may require. Petitioner. 372 FORMS State of New Yobk, 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 knowiledge, except as to the maltters therein stated to be alleged on informiation and belief, and that as to those maitters he believes it to be true. Petitioner. Sworn to bef<>re me this day of , 19 . FORM No. 10. Consent and Certificate of Consent or Vote to Extend Corporate Existence. See § 37, General CorporaJtion Law. Consent op Stockholdees. The undersigned stockholders of the Oompafny, a domestic stock oorparatdoai, owning two-thirds in aniount of its capital stock; that iis to say, iSlhartes of the whole number of shares of capital stook of said Compamy, 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 whekbof, we have hereunto set our hands opposite the number of shares of stock owned by us, respectively, in such Oompany, this day of , 19 , in duplicate.* , shares. , shares. , shares. Certificate of Consent ob Vote. The undersigiled, , President [or Vice-President] and , Secretary [or Assistant Secretary] of the Company, a domestic 'Sitock corporation, hereby certify: That the written oonsemt of the isitockholders of said Company, hereto lattaehed, 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 *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 business. FORMS 373 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 u copy of the resolution adopted at such meeting.] In witness wheeeof, we have subscribed 'and acknowledged this certificate under the seal of the corporation this day of , 19 . [COKPOBATE SEAL.] President lor Vice-President]. Secretary lor Assistant Secretary]. State op New Yoek, County of , **••' On this day of , 19 , before me personally came Inames of officers signing] to me kniowm, and known to me to te the individuals described in and who executed the foregoing, cer- tificate, and they severally acknowledged to me that they exeouted the same. FORM No. 11. Waiver of Notice of Meetings. See § 42, Gfeneral Corporation Law. We, the undersigned, beioig- all of the subsoribers to the capitaJ stock of the Company, do hereby call the first meeting of thie incorporators of said Company, to be held at ; an the City of , County of , at A. M., on the day of , 19 , for the pur- 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 requirememts as to notice and publication of the time, place and purposes of said first meeting, and consent to the transaction thereat of any and all bu'siness pertaining to the affairs of said Oompamy. Bated, , 19 . Note. — The above waiver of notice may be adapted for the annual and special meetings of stockholders and for directors' meetings. 374 FORMS FORM No. 13. Reference to Waiver of Notice in Proceedings. See §' 42, GeneraJ CJorporation Law. That said meeting of the sitocbhoJders was so %eld without notice to them and without the lapse of the period of time prescribed by law, all the irequirements of law and of the by-laws respecting notice of the time, place and purposes of said meeting liaving been waived in writing by every stockholder of said Company, as follows, [or a copy of which waiver is hereto attached.'} FORM No. 13. Resolution for Change of Corporate Name, See § 61 et seq., General Corporation Law.* Eesolved, That the corporate name of this Company be changed •from Company to Company, and that a petition to that end be presented to tihe Supreme Court of the State of New York, pursuant to Sections 61 and 62, inclusive, of the General! Corporation Law; and that the President of this Compa/ny be empowered to employ ooumsd and to do all ithings 'proper and re- quisite to effect such change. FORM No. 14. Petition for Change of Corporate Name, See § 61 et seq., (Jeneral Corporation Law. Supreme Couet, County. In the Matter of the Application of the Company, a Domesitio Stock Corporation, for Leave to Change its Name. « TO THE Supreme Court : Your petitioneir states: I. nhat it is a domestic stock corporation incorporated under the Business Corporations Law of the State of New York, having its principal office and place of business in the Borough of in the City of , County of , State of New York. II. That it is engaged in [state nature of husinessl. *A resolution is required only in tlie cases of banking, insurance and railroad coiporations. See § 60, General Corporation Law, FORMS 375 m. That the present name of your petitioner is Oompany. That it prays that it may be authorized to adopt the name of Coanpany. IV. That there are in adjoining states business concerns having names resembling that of your petitioner, and that such similarity of Eiames causes oonfusiom and loss to your petitioner. V. That the name, Company, is not the name of any other corporation incorporated in the State of New Yoi-k, or one so nearly resembling it, as to be calculated to deceive, as is evi- denced by the certifioate of the Secretary of State, hereto annexed.* Dated, , 19 . [COEPOEATE SEAL.] COMPANY, By / , President. State of New Yoek, Coimty of , ■■ , being duly sworn, deposes and says, that he is the president of the Company, the petitioner herein; tb;at he has read the foregoing petitiion and knows the contents thereof; that the aame iis 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. That the reason why this verification is made by 'deponent and mot by the petitioner is that the petitioner is a domestic corporaition of wihioh deponent is the piresidemt. That the girounds of deponent's belief, as to all matters not stated upon his knowledge in said petition are f \ Sworn to before me this day of , 19 . FORM No. 15. Notice of Application to Change Corporate Name. See § 62, Geoieral Corporation Law. To Whom it Mat Conceen: The Oompany, a domestic corporation, wh03« principal business oflBce is located in the City of , County of , and State of New Yorki will apply to the Supreme Court, lut a SpecdiaJ Term thereof, to be held at the , in the City of , County of , on the day of , 19 , at ♦ Rec[uired by § 60, General Corporation Law. fThis paragraph is unnecessary in cases where the affiant's knowledge is peraonaL See §61, General Corporation Law, and §§525, 526, Code of Civil Procedure. 376 FORMS o'clock in the forenoooa of that day, or as soon thereafter as counsel can be heard, for leatve to assume another corporate name, to wit, Company. Dated, , 19 . Company. By President. Note. — ^A copy of the above notice must be published, and with a copy of the petition (Form No. 14) must be filed with the Secretary of State, whereupon the proposed new name is reserved for a certain period. See § 62, General Corporation Law. FORM No. 16. Order Changing Corporate Name. See § 63, General Corporation Law. At a Special Term of the Supreme Court, held art in the Coumtyof on ithe day of , 19 . Present: Hon. , Justice. [i'itle; see Form 14.] Upon reading and filing the petitioii •oi the Dompany, a domestic stoclc corporatiom, verified by , its president, for an order permitting said Company to assume the name of Company; and upon reading and filing the certifi- cate of the Secretary of State thereto annexed, that the name which such corporation proposes to assume is not the name of any other domestic corporation or a name which he deems so liearly resembling it, as to be calculated to deceive; and it appearing that notice of the presentation of said petition has been duly published once in each weelc for three successive weeks in , a newspaper published in the county of , and in , a newspaper published in the county of , in which county [Or counties'^ said corporation has its business office; [or, if the cor.poratiota has no business office, in , a newspaper published in the county in which its principal corporate property is situated, or in which its operations are or therefore have been principally cond/ucted'] ; [or if the corporation be located in the city and county of New York, that such notice has been published once in each week for three successive weeks iii^/two daily newspapers published in such county'} ; and the oourt being satisfied by said petition and by the affidavit and certificate presented therewith, that the petition 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 due notice of the presenation of the petition has been made. Now, upon motion of , Esq., attorney for the peti- tioner, it is Ordeeed that said petition be granted, and that said Cornpany be authorized to assume the name of Company on and after the day of , 19 [not FORMS 377 less than thirty days after the date of the entry of the orderl ; and it is further Ubdered that this order be enitered, and the ipapers on which it is grajited be filed within ten days from the date hereof, in the ofBee of the elerk of county, the county in which the certificate of incorporation of said corporation is filed; [or, if there be none filed, in the county in which its principal office shall he located; or, if iti has no business office, in the county in which its principal property is situated, or in which its operations are or theretofore have been principally conducted, or in the office of the clerk of the county in which the special term granting the order is heldl ; and it is further Ubdered th'at within ten days after the eiLtry hereof, a certified copy of this order be filed in the office of the Secretary of State; and that withlin the same time 'a copy of this order be published once in each week for four suocessivie weeks in the , a newspaper in the county in which this order is 'hereby directed to be entered.* FORM No. 17. Consent of Stockholders to Mortgage. See § 6, Stock Corporation Law. The /undersigned stockholders of Company, a corporation organized and existing under the laws of the State of New York, with a caipital stock of dollars, consisting of shares, of the par Value of dollars each, and owning [state percentage, which miist be at least two- thirds} of the capitaJ stock of said Oomipany, do hereby consent In writing that said Company may mortgage its property and franchises to , as trustee. Such mortgage to be dated the day of , 19 . and to be issued to secure the payment of bonds of said Company, of dollars each. Said bonds to be dated the day of , 19 , and to mature in years thereafter, and to bear interest from the day of , 19 , until maturlity, at the rate of per centum per annum, payable on the day of and of each year. In witness whekeop, we 'have ihereunto set our hands opposite the BDumbei* of sihares of stock of said Oompamy owned by us. Dated, , 19 • , shares. , shares. , shares. ___^^_ Stockholders. See §63, General Corporation Law, as to publication and filing of original order filing a certified copy; also as to filing and recording affidavit of publication. 378 FORMS State of New Yoek, ss ' County of , " On this day of , 19 , before me personally came , to me known, and known to me to be the persons described in and who executed the foregoing consent, and they severally acknowledged to me that they executed the samie. FORM No. 18. Certificate of Consent or Vote to Mortgage. See § 6, Stock Corporaitioni Law. We hbbeby CEETiFY that the stockholders of Istate percentage, which must be not less than two-thirds] of the capital' stock of the Company, a corporation organized and existing under the laws of the State of New York, have consented in writing to the mortgage made and executed by the Company to , as trustee, dated the day of , 19 , a copy of which mortgage is hereto attached and marked [or by a vote at a special meeting of the stockholders called for that purpose, upon the same notice as that required for the an- nual meetings of the Company^. In witnhss whereof, the President [or Vice-President] and the Secretary lor Assistant Secretary] of said Oompany have subscribed the foregoing certificate, under the seal of said cor- poration, this day of , 19 . Company, By President [or Vice-President]. [COBFOBATE SEAL.] Secretary [or Assistant Secretary]. State of New Yobk. County of , " On the day of , to the year , before me personally oame and , to me known, who, being by ■ me duly sworn, did depose and ®ay that he, the said resided in the City of , State of and is the president of the ' Company, and that he, the said Tesided in the City of , State of , and is the secretary of the Oompany, the oonpoiration described in amd which executed the fortegoing certificate; that they knew the seaJ of the said corporaitSon ; that the seal affixed to said certificate was aiuoh borpoirate saal; 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. FORMS , 379 FORM No. 19, Unanimous Consent to Change Principal Office and Place of Business. See § 13, Stock Corporation Law. . — Company. The imdersigned stockholders of the Company, a domes- tic stock corporatiooi, being the owners .of all the outstanding capital stock of said corporation, as appears by the annexied affidavit of the custodiaai of the stock-book of said Company [see Form 25], do hereby consent in writioig that the principal office .and place of business of said Company, .named in the certificate of incorporation, to wit: the [City, County or Town, as the case may 6e] be changed to the City of , Ooointy of , in the State of New York.* In witness WHEbeop, we have hereunto signed our names op- posite the number of shares of stock owned by us, respectively, this day of , 19 . Shares, -, Shares, -, Shares, Stockholders. FORM No. 20. Certificate of Vote or Consent to Change Principal Office and Place of Business. See § 13, Stock Corporation Law. The undersigned, thie president, secretary and a majonity of the directors of the corporation hereinafter named, do hereby certify: llhat the name of said corporation is the Company. That the principal office and place of business of said Corporation was originally located [and to which it may have been subsequently changed^ in the [city, town and county'] in the State of New York. 'llhat said' Company desires to change its said principal office and place of business to the [city, town and county'] in the State of New York. Tihat it is the purpose of said Company 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, held on the day of , 19 , stock- holders owning shares of the capital stock of said Com- pany, in person or by proxy, adopted the following resolution: * This consent must be acknowledged by all of the stockholders face Fonn No. 17) and filed in the o£6ioe of the Secretary oE State. See S 13, Stock Corporation Law. 380 , FORMS Resolved, Thsjt the principal office and place of business of this Company be changed from to , and thait the presiident and secretary, and direotors, or a majority thereof, be au- thorized and directed to execute the certificates required to be filed by Section 13 of the Stock Corporation Law, such change pursuant to law. [Or, That such change has teen authorized by the unanimous con- sent of the stochholders expressed in writing, duly acknowledged and filed in the office of the Secretary of State.} That the names of the directors of said corporation and their respective places of residence are: Names. Residences. In witness whereof, we, the President and Seonetary, and a majority of the directors of said Company, have here- unto signed this certificate, in triplicate,* this day of , 19 . . Presiident. , Secretary, A Majority of Directors. State op New Yokk, County of , "' being duly and severally sworn, depose and say that said is the president of COmpamy, 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 thelir own knowledge. Sworn to before me this day of _j 19 . , President, , Secretary, A Majority of Directors. *For filing in the various offices. See § 13, Stock Corporation Law. FORMS 381 FORM No. 21. Certificate of Merger. See § 16, Stock Corporation Law. The undersigned, the , Company, hereby certifies: I. That the Company is a domestic stock corpora- tion existing under the laws of the state of New York [or, o foreign corporation duly authorized to do business in the State of Neia York}. II. That, the Company is a domestic stock cor- poration existing under the laws of the State of New York [or, a foreign corporation duly authorized 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 i 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. " Wheeeas, 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, " Resolved, 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 whebeop 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 [COBPOEATB SEAD.] President. Attest: Secretary, State of New Yoek, 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 ; 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 382 FORMS 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 Corporation Law. This agreement, made the day of , 19 > between ; party of the iirst part, aiid , party of the second pant, under the corporate seals of said companies. WITNESSETH: That , said party of the iirst part, is ^ corporajtion 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 That, in consideration of the mutual covenants and agreements herein contained, the said parties hereto do herel)y merge and con- siolidajte such corporations initio a single corporation under and in pursuance of the laws of the State of New York, in such case made and proTOded, and by these presents, They do hereby covenant and agree upon and prescribe the terms and conditions of such conisolidatiO'n, and the mode of carrying the same in/to eflfect, which said terms and conditions and mode of carrying the same into effect, they mutuaUy covenant and agree to observe as follows, to wit: 1. That the name of the corporation hereby farmed by aaid con- solidation shall be Company. 3. That the number of directors which shall manage its affairs shall be . , 3. That the names and .post-office addresses of the directors of suoh new corporation for the first year are as follows, to wit: Names of Directors. Posit-office Addresses. 4. That the term of existence of such new corporation shall be years. 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 in the county 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 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. FORMS 383 ' 8. That the number of shares into which said capital stock is to be divided 'is shares of oommon stock of the par value of each, and each stockholder of record shall be entitled on the election of directors to as many votes as sliiall equal rthe number of his shares of ptoek, multiplied by the number of directors to be elected, and he may cast all of such votes for a single director, or he may distribute them amoaig the number to be voted for or ajoy two or more of them as he may see fit. 9. That the manner of distributing such capital atoek among the holders thereof shall be as follows: The capital stock of each ol 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 oertifioates of atock in either of said constituent oorporations, parties hereto, certificates for like amounts of stock in siaid new corporation shall be issued to the holders thereof. In witness whebeop, 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 affixed the corporate seals of their respective corporations, of wihioh they are respeatively the directors, the date and year first aforesaid. [COBPORATB SEAL.] Directors of President, Attest: Secretary. [COEPOBATE SEAl.] Attest: Directors of President, Secretary. State of New Yoek, Oouiuty of , " On the day of , 19 , before me, personally came , to me kntown, who, being by me duly sworn, did depose and say that he resides in the City of ; 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 aflaxed by order of the board of directors, of said corporation, and he signed his name by like order. Subscribed and sworn to before me this day of , 19 . Notary Public. 384 FORMS State of New York, Ooimty of , ■■ On the day of j 19 , before me, personally came , directors of Company, to me severally known, to be the persons who sevierailly execute^ ithie foregoing agree- ment, and seiveT'ally acknowledged to mie .that they executed the same for the uses and purposes (therein expressed. Notary Public. State op 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 ihe resides in the city of , that he is the pnesddent odE , the oorporation described in and which. executed the above instrument; that he knew the seal of said cor- poration; that the seal affixed to said instrument was such corporate seal; that it was so jaffixed 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 . NIoitary Bublie. State of New York, ss. ; County of , On the day of j 19 > before me personiaJly oam'e , directors of Company, to me severally known to be the persons who severally executed the foregoing agreement, and severaUy acknowledged to me that they exeouited the same for the uses and purposes therein expressed. Notary Public ^ iSwoEN Copt OP 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 office of , in the City of , County of , N. Y., on the day of , 19 , at o'clock in the of that day. Said meeting was caliled 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 FORMS 385 the post-offiee, postage prepaid, and published for at leas-t two suc- cessive weeks in , one of the newspapers of county, in which county said corporations each have their place of business. Purauamt to such notice ifche stocbhodders of the met at , in the oity of , county of , on the day of , 19 , at o'clock in the noon. There were ppeseHit at such meeting in person or by proxy stock- holders owning shares of the stock, being at least two-thirds of the stock of said corporation. Trhe meeting was organized by the election of Ohair- man, and 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, aifter 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 byjiroxy, and upon a, canvass of such ballots it was found that the vote of stockholders owniing Shares of th€i 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 stockholdfers Which were so cast in person or by proxy in favor of the said agreement of the consolida- tion constitute a)ll of the stock of said corporation. Thereupon said agreement of consolidation was declared duly ap- proved and adopted, and the meeting adjourned. In witness whebeop, I harve made, signed and sworn to the fore- going copy of proceedings in duplicate this day of , 19 . Secretary. State of New York, Ooumty of , being duly sworn deposes and says iihat 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 agreemeoit of consolidation dated , 19 , that the foregoing is a copy of the proceedings of siaid 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 tliis day of , 19 . Notary Public. 25 386 FORMS State op New York, Ooimly of ,**■■' of said county being duly sworn, deposes and says, that hie is the manager of the , publishers of the , a newspaper prinited and publistied in , in said counity, and that a notice, of which the annexed is a .printed copy, cut from said newspsuper, has been published in said news- paper, for twelve consecutive days, commencing on the day of , 19 . Sworn to before me this day of , 19 . Notary Publia Notice to Stockholdees. , 19 . A special meeting of tlie stockholders of will be held on the day of , 19 , at o'clock . M., at the office of such oompainy, at , dm the city of , for the purpose of voting upon u. proposition to con- solidate such coaupany with , pursuant to Sections 8 to 12 of the Business Corporations Law, and for such other busi- ness as may properly come before said meeting. President. Secretary. State op New Yoek, 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 maiilcd a, copy of the fore- going notice to each of the following named persons by depositing the same in the post-office at in a sealed envelope with fuM pos'tage prepaid thereon, addressed to said persons respectively as follows: • . Swam to before me this day of , 19 . Notary Public. [Repeat above Sworn Copy of Proceedings for second corporation.} FORMS 387 FORM No. 22. Notice of Annual Meeting. See § 23, Stock Corporation Law. The amnual meeting of .the stoobholders of the Ckvmpiany for the ejection of directors for :the ensuing year and for the transaction of such other business as may properly come before the meeting,* wiM be held at the office of the Company, No. street in the City of on the ate Corporation Law. t In such case«tbe report must be filed before May first Idem. 392 FORMS dollarij was issued for property purchased. (See § 55, Stock Corporation Law.) 2. The debts of said company amooiiit to [or at least equal] dollars. , 3. The assets of said company amount to [or at least equal] . doMars. 4. [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 Neio York.*] IPresident, Vice-President, Secretary or Treasurer.] Note. — § 34, Stock Corporation Law, does not require the annual report to be acknowledged Qr sworn to. It must be filed in the office of the Secretary oi State . FOKM No 30. Stock Certificate. See §§ 50, 51, Stock Corporation Law. Number . Shares, $ each. Shares capital, s3 The Company. Incorporated under the Laws of the State of New York. Preferred Stock, $ Common Stock, $ FuM-paid and Non-assessable. This ds to certify that is the owner of shares of the t Stock of the Company, transferable only on the bijioks of the Company by 'the holder thereof, in person, or by doily authorized attorney upon surrender of this certifioalte endorsed. [COEPOEATE SEAl.]t New York, , 19 . President [or Vice-President]. Secretary [or Treasurer]. [Endorsement.] 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 appoint lat'torney to cause the saiile to be transferred on the books of the Company. Witness my hand and seal this day of , 19 . In presence of [seal.] *S9e § 16, General Corporation Law. t Common or preferrad. Preferred stock certificates .should specify in what the preference consists. See Form No. 32. J Where no corporate seal has been adopted, see note to § 11, General Corporation Law. FORMS 393 FORM No. 31. Certificate of Partly Paid Stock. See § 60, Stock Corporation Law. Number . Shares, $ each. Shares. CAPITAL, $ The Company. Incoirporated under the Laws of the State of New York. Preferred stock, $ Common Stock, $ This is to certify that is the owner of shares of the partly-paid* stock of Company (Which partly-ipaid S'tock oonsista of shares of *stock, of the par value of $ each, being the whole [or a par*!] 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 laruthorized 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 amy liability except for the payment to said Company 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- tions 57, 58 ajid 59 of Chapter 61 of the Laws of 1909. 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], [CORPOEATB SEAL.] Secretary [or Treasurer]. [Payment of the respective installments, and the dates and amounts thereof, should be endorsed on the certificate.] For value received hereby sell, assign and transfer to shares of the capital stock represented by this oertifioate, and do 'hereby oonsititute and appoint ajttopney 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.] • Preferted or common. See § 51, Stock Corporation Law. t May be the whole or any part of the capital stoclc. § 60, General Corporation Law. 394 FORMS FORM No 32. Certificate of Preferred Stock. See § 61, Stock Corporation Law. Number . Shares, $ each. Shares. capital, s Company. Inoorporajted under the Laws of tlie State of New York. ConMnon stock, $ . Preferred stock, $ I^ill-Paid and Non-Assessable. This is to certify that is the owner of shares of the preferred stocli 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 oertifioate properly endorsed. The holder of the preferred stock represented by this certificate is entitled to receive, iand the Company is obligated to pay, annually [or semi-annuallyl out of its surplus or net earnings, a cumulative dividend of per centum before any dividend is declared or paid upon the common 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 portiom thereof srhall become a charge against the net profits of the Company, and shailil be paid in full therefrom before any dividends are paid or declared upon the common stock. Said preferred stock is isubject 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 divideindsj if any. Said preferred stock is not entitled to vote at stockholders' meet- ings.* Witness the seal of the Company and the signatures of its presi- dent [or vice-president] and secretary [or treasurer] this day of , 19 . [coEPOBATE Seal.] [President or Vice-President.'] [Secret wry or Treasurer.] * See note to $ 23, General Corporation Law. See also § 51, Stock Corporation Law. FORMS ^ 395 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 , 19 , at o'clock in the noon, for the purpose of voting upon a propoeition to reclassify the capital stock of said Company, so that its present capital stook of dollars, consisting of shares of common stock of the par value of dollars each, shall consist of shares of common stock a^d shares of preferred stock, all of the .par value of dollars each; said preferred stock to have no voting power,! to be entitled to a cumulative preferential annual dividend of per centum, and to be redeemable at par at the dis- cretion of the company years from the date of issue. By order of the Board of Directors. Note. — The foregoing notice must be printed once a week tor two successive weeks immediately preceding the da'e of tlie meeting, in a newspaper published in the county in which the meeting is to be held, and in such other manner as the by- laws prescribe for the annual meeting. See § 25, Stock Corporation Law. FORM No. 34. Certificate of Proceedings of Meeting to Authorize Preferred or Common Stock.* See § 61, Stock Corporation Law. We, , piresident aiui , seere^ry of the Comipany, a stock corporation organized under the laws of ithe State of New York, do hereby certify as follows: Thait a srpeoial meeting of the stockholders of said Company to vote upon a proposition to xeolassify the capital stock of said Com- pany, as specified in the notice for said meeting (hereinafter re- ferred 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 ' Or both; also different classes of preferred stock, t See note to § 23, General Corporation Law, ante. 396 / FORMS I of said meeting, in , a newspaper published in the county of , where said meeting was held. Such notice was aJso .given in fchcimanner required by the byJaws for the annual meeting of said Company, to wit: [61/ mailing- the same to each stockholder of the said Company at his last Known post-office ad- dress at least days before the date of sa4d m,eeti/ng.1 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 affidavits of and attached. That at said meeting, the holders of record of shares, constituting [more tham or at least*] two-thirds of the capital stock of said Company voted in favor of the following resolution: " Resolved, that the capital stock of the company, now consist- ing of shares of common stock of the par value of dollars each, of which sihares have been issued and are outstanding, and shares remain unissued, be reclassified into common and .preferred stook, consisting of shares of common stock and shares of preferred stock, all of the par value of dollars each. " That the shares of stock remaining unissued shall constitute the preferred stock hereby created, the stock issued ami outstanding remaining comimon stock as heretofore. " That said shares of preferred stock shall be entitled to receive a coimulative preferential dividend of per centum per annum, payable annually [or semi-annually] before any dividends are paid upon said common 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 ait par at the discretion of the corporation years from the date of issue." In witjstess whekeof we have executed t!iis certificate of the proceedings of said special meeting, in duplicate,} this ' day of , 19 . [President or Vice-President.] [Secretary or Assistant Secretary.] State op New Yoek, County of , " and , being duly and severally sworn, say: That said is the president [or vice-president], * As the case may be. t See § 23, General Corporation Law. i For filing and recording in the offices where the certificates of incorporation were filed and recorded. See § 5, General Corporation Law. FORMS 397 aad said is the secretary [or Assistant Secretary'] o^ the Oompany; that they hav« 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 Reduce Capital Stock. See I 631, Stock Corporation Law. A apeoial meeting of the srtoekholders of Oompany will be held at No. street, in the City of , on the day of , 19 , at o'clock in the noon, for the ipurpose of [increasing or reducing] the capital stock* of said corporation from dollars, consisting of shares* of the par value of dollars each, to dollars to consist of shares,* of the same par value.f Dated, ' , 19 . President {or Vice-President], Secretary. FORM No. 36. Unanimous Consent to Increase or Reduce Capital Stock. See § flS, 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 Oomipany be [increased or reduced] from dollars, consisting of shares,* of the par value of dollars * Common or preferred. ?■ See § 65, Stock Corporation Law, which relates to the method of changing par ue of shares. 398 FORMS eaoh, to the amount of dtdlars, to consist of shares, of the fame par value. [See notes to Form No. 36.] Dated, , 19 . Names of Stockholders. Number of Shares. [Attach affidavit of custodian of stock book. See Form No. 25.] As the consent must be filed in the offices of the secretary of state and^ the clerk of the county in which the principal place of business of the corpuration is located » and as a cOT>y of the consent must be entered upon the minutes of the corporation (see § 64, ^ock Corporation. 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. FORM No. 37. Certificate of Consent or Vote to Increase or Reduce Capital Stock. iSee § 64, Stock C!orporation Law. We, , Chairman, and , Secretary, of a sipeici'al meeting of the stockholders of the Company, a, stock cor- poration organized under the Jaws of itlie State of New York, called for the purpose of [increasing or reducing} the amount of its capital stock, hereby maike, sign, verify and acknowledge the foliowing cer- tificate of the proceedings had at such meeting: That said Company, desiring to [increase or reduce] the , amount of its capital stock, the president [or mce-president] land the secre- tary caused a. notice signed by them to be publislied in , a newspaper printed in the county of , in which county* the principal business office of said Company is located, onoe a week for at least two successive weeks prior to the date of the meeting oadted thereby, whioh eaid notice was as follows: [See Form 35.] That at least two weeks pirevjoais to said meeting, a copy of said notice, enclosed in a post-paid envelope, was duly miailed 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, a^ appears by the affidavit of hereto attached*'] : That at the time and the place specified in said notices * " If any [newspaper] is published therein.'* Section 63, Stock Corporation Law. FORMS 399 stockholders appeared, in person and by proxy in num"bers repre- senting 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 siaid meeting having been read, and proof of the proper publishing and mailing [or publishing and serving^ or publishing, maiUng and serving} thereof having been presented and ordered on file, the following resolution was adopted, " Resolved, 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 eaoh, to the amount of dollars, to consist of shares* of the same par value. That the vote of the stocfcholders 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. And we do further certify: That the amount of capital of said Company heretofore authorized is dolJiars, of which dollars thereof was act- ually issued.** That the amount of the {increased or reduced] capital stock is dollars. [That the whole amount of the ascertained debts and liabilities of the saAd Company is dollars.-^l In witness whekeof we have signed this certificate, in duplicate, this day of , 19 . Chairman. Secretary. State op New Yoek, ss.: County of , and , being duly and severally, sworn, ■say: That we are the Chairmian and Secretary, respectively, of the meeting described in the foregoing certificate; that weTha/ve read * Common or preferred. **See § 55, Stock Corporation Law. t This statement is necessary only in the case of a reduction of the capita! stock, when the following approval must be endorsed by the State Comptroller on the cer- tificate; " The reduced capita! is sufficient for the proper purposes of the within cor- poration, and is in excess of its ascertained debts and liabilities," In practice, the State Comptroller gives such approval on a separate blank provided by his office. 400 FORMS the foregoing certifloate subscribed by us and that the same is true of our own knowledge. Sworn to before me this day of , 19 . State of New YoeKj County of , ' ' On this day of , 19 , before me personally came and , to me known, and known to me to be the individuall'S described in ^and who executed the forgoing certifioaite, land they severally acknowledged to me that they exe- cuted 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 § 64, Stock Corporation Law. FORM No. 38. Affidavit for Approval of State Comptroller on Reduction of Capital Stock. See § e4, Stock Corporation Law. State or New Yobk, County of , *?■ ' 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 Stale 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 liabilities. Sworn to before me this day of , 19 . * The amount of the reduced capital. FORMS 401 FORM No. 39. Increase or Reduction of Par Value of Shares. See § 65, Stock Corporation Law. For forms of notice of imfieting, consent of stockholders and cer- tifieate of consent or vote to increase or reduce the inumber 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 Oorjioraltion Law. FORM No. 40. Corporation Acknowledgment. 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 ; that ihe is the [president or other officer] of the [name of corpora- tiori], the corporation described in and which executed the above instrument; that he knew the seal of said corporation;! that the seal afiixed to eaid instrument was such corporate seal; that it was BO 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 taking acknowledgement. 1 [SEAI,.] * Should be " certificates." See § 64, Stock Corporation Law. f See note to § 11, General Corporation Law. GENERAL INDEX [403] GENERAL INDEX \_References are to pages.] ACKNOWLEDGMENT, corporate form, 401. of certificate of incorporation, 2, 28. ACTIONS by and against corporations, 62, 64, 65, 71, 74. evidence in, 29, 122, 241, 242, 243. complaint, 246. how begun against domestic corporations, 230, 231; 232. how begun against foreign corporations, 231, 232. not affected by consolidation, 15. not affected by amended certificate of incorporation, 29. dissolution, 65, 74. sequestration, 64. not affected by change of name, 57. against stockholders, 68, 177. limitation of, 177. by attorney-general, 63, 68, 71, 74, 249, 301. witnesses' privileges, 266. to annul corporation, 71. for non-payment of corporation note, 247. preferred causes, 128, 240. procedure in, 230, 256. by judgment-creditor, 248. misnomer, 247. cognizable by justice of the peace, 253, 255. stay by stockholders, 45. /See Complaint; Dissoltjtion ; Evidence; Foreign Coepoea- TioNS; Merger; Pleadings. ACTIONS BY AND AGAINST DIRECTOBlS. See Dieectoes. ACTIONS BY AND AGAINST OFFICERS. -See Officers. ACnONiS BY AND AGAINST STOCKHOLDERS. See Stock- holders. AGENT of unauthorized foreign corporation, 269. ADMINISTRATOR, etc., holding stock not personally liable, 176. trust estate, when liable, 176. AGREEMENT. See Voting Trusts. ALTERATION or repeal by legislature, 129. of business, 159. AMENDING CERTIFICATE of incorporation, 26, 28, 129. See Capital Stock; Change of Name; Change op Place op BUSINESS; Change op Business; Coepoeate Exisijince; Dieectoes ; Puechase oe Exchange of Stock; Shaees of Stock. [405] 406 INDEX [References dfe to pages.] ANNUAL ELECTION of directors, 160. at least one-fourth of directors to be elected annually, 160. notice of meeting, 160. ANNUAL MEETING of stockholders, 160. notice of, 160. publication of notice, 160. ANNUAL REPORT by domestic and foreign corporations, 168. penalty for failure to make, 169. to specify stock issued for property purchased, 175. ARREST. See Officebs. See False Reports. ASSETS, sale of, 157-158. See Statement. ASSIGNMENTS. See Transfers. ASSURANCE, as part of corporate name, prohibited, 27, 269, 271. ATTACHMENT of property, 235-240. See Justices' Courts. ATTORNEY-GENERAL, action to annul corporation, 71. action to dissolve corporation, 65. action to dissolve moneyed corporation, 74. action against officers, directors and stockholders, 68. See FOEFEITUREi BANK, or " BANKING," as part of corporate name, prohibited, 27, 269, 271. BANKING POWERS, prohibited, 39. BENEFIT, as part of corporate name, prohibited, 27, 269, 271. BOARD OF DIRECTORS. See Directors. BOND. See Lost Certificate; Officers. BONDS of domestic corporation guaranteed by another, 150. when convertible into stock, 14T. validity of, 148, 149. officers may be required to give, 165. •when issued, 146, 150. consideration of, 174. foreclosure, 124, 151-154. may be issued on reorganization, 153. voting povyer of, 152. fraudulent issue of, criminal, 268. See Mortoaoe. BOOKS, accounts to be kept, 166. extracts from, 166, 167. names of stockholders to be exhibited, 166. stock book of foreign corporations to be exhibited, 167. of domestic corporation as evidence, 166. of foreign corporation as evidence, 242, 243. INDEX 407 IBeferences are to pages.'] BOOKS — Continued. false entries, criminal, 271. inspecti«n, 166, 167. penalty for refusing inspection, etc., 167, 168, 271. forgery, 274. See Stock Book; Teanspek Book; Svbscbiftions. BOOKS OF ACCOUNT to be kept, 166, 167. how subpoenaed, 241, 242. BUSINESS to be described in certificate, 2. may be altered and extended, 159. corporation taxable at principal place of, 198. what kinds may be conducted, 2. practicing law prohibited, 258, 259. restrictions upon commencing, 7. must be commenced within two years, 47. place of, how changed, 155. capital on commencing, 2. BUSINESS CORPORATIONS LAW, 1-20. corporations not allowable under, 2. See Ceetificate of Incobpobation. BY-LAWS, 160, 165. power to make,^ 31. failure to adopt, 163. of directors, respecting election to be published, 31, 32. stockholders may make, 44. when directors may make, 31, 46. inspectors of election, 165. to prescribe duties of officers, 165. meetings, 31. special meetings, 51. stock, 31. directors' meetings, place of, 3. CANCELLAO'ION of forfeited stock, 174. See Capital Stock. CAPITAL, amount of, required to commence business, 2, 7. retuijn of, to stockholders after reduction, 182. employed in State subject to taxation, 203, 204. not to be applied to purchase of stock, 270. See Capital Stock. CAPITAL STOCK, amount of, 2. classification of, 2, 178. ten per cent, to be paid on cash subscriptions, 173. one-half to be paid within one year, 8. certificate of such payment to be filed, 8. dissolution for non-payment, 8. 408 INDEX [References are to pages.} CAPITAL STOCK — Continued. issued for money, labor or property, 174. payment of, 69, 70, 173, 175. when may be issued for stock of other corporatioBs, 172. dividends not to be paid out of, 163. how increased or reduced, 178, 179. notice of meeting to increase or reduce, 180. increased or reduced by unanimous written consent of Sitockhold- ers, or by majority vote at meeting, 179, 180. certificate of consent, or vote, to increase or reduce, verified by chairman and secretary of meeting, and filed, 180, 181. limitation on amount of, on reorganization, 153. nimiber of shares increased or reduced by two-thirds vote, 182. unlawful diversion of, 163, 269. unlawful increase of, g70. when to be reduced by stock forfeited for non-payment, 174. annual report to state amount of, etc., 168. "■ See CAPITAL; Dividends; Pkefeered Stock; Subscriptions; Taxation. 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, 179, 180. of consent or vote of stockholders to authorize mortgage to be made and filed, 146, 147. such certificate when recorded to be conclusive evidence of truth of consent to execution of mortgage, 149. of vote to increase or reduce number of shares, 182. of consent or vote of stockholders to extend corporate existence, 47, 48. of inspectors of election, 165, 166. of foreign corporation to do business in State, 34. of dissolution by incorporators, 92. on issuance of common and preferred stock, 178. on reorganization, 151. of Secretary of State on change of name, 53. false, action for, 169. false, criminal, 274. ' | inspectors tofcnake and file certificate of election, 165. See Stock Cebtificate. CERTIFICATE OF INCORPORATION, 2-6, 7, 8, 9. defi^nition, 23. certified copy, 23, 27, 29, 30. as evidence, 30. subscribers to, 2, 26. to be filed and recorded, 2, 26. INDEX 409 [References are to pages.} CERTIFICATE OF INCORPORATION — Continued. may contain special provisions, 3, 30-31, 40-41, 48, 160, 172, 177, 178. may provide for preferred stock, 178. may provide for cumulative voting, 41. may provide for partly paid stock, 177. fees for filing and recording, 342, 344. amended, 28. acknowledged, 2. certified copy or original to be filed in county clerk's office, 26. lost or destroyed, how replaced, 29. directors need not be stockholders unless otherwise provided, 160. forfeiture for non-user, 47. alteration and repeal, 129. See Alteration; Amending Certificate. CERTIFICATE OF STOCK. See Stock; Stock Certificate. CHAIRMAN of meeting. See Capital Stock. CHALLENGE of stockholder or proxy, 40, 42. CHANGE of purposes, 159. of name, 53-57. of number of directors, 161, 162. of number of shares, 182. of place of business, 155. of par value, 182. See Increase of Capital Stock; Reduction on Capital Stock. CHARTER, alteration and repeal of, 129, 176. forfeiture for non-user, 47. CLASSIFICATION of corporations, 22, 23. of directors, 162. of stock, 2, 178. CODE OF CIVIL PROCEDURE, 230-256. CODE OF CRIMINAL PROCEDURE, 282-285. COMBINATIONS prohibited, 156, 300. procedure against, 301-303. COMMENCING BUSINESS, restrictions upon, 7. capital on, 2. CO'MMON STOCK, 178. when preferred stock exchanged for, 178. on reorganization, 152. COMPETITION, unlawful, prohibited, 156. COMPLAINT, allegation of corporate existence, 246. COMPTROLLER, approval of, on reduction of capital stock, 181. reports to, 207-210. rules pertaining to stock transfers, 226. fees, 343. 410 INDEX [References are to pages.} CONDEMNATION, 18, 19. CONFLICTING LAWS, construction of, 129. CONSENT OF STOCKHOLDERS to mortgage, 146. not necessary for purchase-money mortgage, 146. to be filed and recorded, 146, 147. vote at meeting in place of, 146. to increase or reduce capital stock, 179, 181. to change principal place of business, 155. to increase or reduce number of directors, 161, 162. to dissolution before beginning business, 92. to dissolution before expiration of charter, 93. to plan of agreement on reorganization, 152. to sale of franchise and property, 157. to extend corporate existence, 47-49. jSee Cebtiticate; Moktgagb. CONSIDERATION for stock and bonds, 174. CONSOLIDATION, when business corporations may consolidate, 10. proceedings to effect, 10-12. powers of consolidated companies, 13. property transferred on, 13, 14. rights of creditors upon, 14. tax and fees to be paid on, 201. evidence of, 30. dissenting stockholders, 11-13. of bridge and railroad corporation, 157. See Fees ; Mergek ; Sale op Franchise. CONSTOJUCnON of conflicting laws, 129. special construction act, 340. See General Construction Law. CONTRIBUTIONS. See Political Contributions. CONVERSION of bonds into stock, 147. increase of capital stock on, 147. CONVEYANCES of property to officers, etc., when corporation insol- vent, etc., 183. CORPORATE EXISTENCE, duration of, 2, 5, 31. extension of, 47, 48. CORPORATIONS, political contributions forbidden, 51, 52. full liability, *. definitions, 23, 24. classification of, 22, 23. moneyed, 23, 165. practicing law, prohibited, 6, 257. CORPORATION TAX LAW, federal, 348. COSTS, security for, generally, 255, 256. security for, in justices' courts, 255. INDEX 411 [References are to pages-l COUNTY CLERK, filing papers with, 26. fees, 343-346. CREDITORS, liabilities of stockholders to, 175, 187. directors' liabilities to, 163, 169, 187. ofBcers liable for making false certificate or report, 169, 187. property transferred in fraud of, 183. executors, etc., not liable to, 176. laborers, servants, etc., stockholders liable to, 175, 176. restrictions on liability to, 175, 176, 281. right of, on consolidation, 14, 15. CRIMES. See Penal Law. CUMULATIVE VOTING, 40, 41. DEBTS, annual report to state amount of, 168. restrictions upon ilicurring, 7. See Stockholdees. DEED OF TRUlST. See Mobtqagc. DEFINITIONS of words used in corporation laws, 23, 24. domestic corporation, 256. foreign corporation, 256. DIRECTORS, definition, 24. number, 2, 5. qualifications, 5, 160. how named for first year, 2, 5. holding over, acts void, 163. how chosen thereafter, 160. notice of election for directors, 162. one-fourth of directors to be elected annually, 160. vacancies, how filled, 160. effect of neglect to elect, 43. special election of, 43. number, how increased or reduced, 161,. 162. may open subscription books, 173. to call in subscriptions, 173. m,ajority of, to sign, acknowledge and file certificate of payment of one-half of capital stock, 8. liable for payment unauthorized dividends, 163. liable for making false , report, certificate, etc., 43. liable to creditors, 163, 169, 187. to appoint ofBcers, 164, 165. liable for loans to stockholders, 164. stock book and books of account to be presumptive evidence against, 166. meetings, where held, 3. by-laws, 46. 412 INDEX t [References are to pages.} DIRECTORS — Continued. as to acts of, 51. dissent from acts of, 272. quorum, 46. powers of, on dissolution, 46. eligible as receivers on voluntary dissolution, 90. collusive actions, 45. unlawfully holding over, 163. liability for unlawful transfers by or to, 183, 184. ' penal provisions respecting, 267-276. penal law definition, 272. prohibited transfers of property by or to, 183, 184. of moneyed corporations not eligible as inspectors of election, 165. must be stockholders unless otherwise provided, 160. policyhojders eligible as, 160. See ELECTIONS; Foreign Cobpohations ; Voluntary Dissolution. DISSOLUTION for non-payment of one-half of capital stock, 8. for non-user within two years, 47. not caused by failure to elect directors, 43. directors as trustees on, 46, 47. dividends upon, 163. action for, 65. by whom action brought, 65. temporary injunction may be granted therein, 65, 66. receiver may be appointed in such action, duties, etc., 66, 67. officers, directors and stockholders may be joined as defend- ants, 68. separate action may be brought against officers, etc., 68, 69. proceedings in either of two last-named actions, 69. property distributed on final judgment in said actions, 69. stock subscriptions may be recovered, 69, 70. liabilities of stockholders, officers and directors, 70. effect of provisions relating to foregoing, 70. See Moneyed Coepoeations ; Voluntary Dissolution. DISTRICT STEAM CORPORATIONS, 15-17. DIVIDENDS payable only from surplus profits, 163. capital not to be impaired by payment of, 163. state taxatioi#based on, 204-206. penal law, 269, 270. DOCUMENTARY EVIDENCE. See Books ; Evidence. DOMESTIC CORPORATIONS. See Guaranty; Salk ELECTION, political, 274. ELECTIONS, annual, to be had, 160. notice of, for directors, 160. one-fourth of directors to be elected each year, 160. INDEX 413 [References are to pages.'\ ELECTIONS — Continued . by-laws of directors respecting election of directors or o£Bcers must be published, 32. of directors, effect of failure to hold, 43. mode of calling special election of directors, 43. mode of conducting special election of directors, 44. who may vote at, 44, 45. inspectors' duties at, 165. inspectors' duties at special, 45. powers of Supreme Court respecting contested, 45. misconduct at, 273. EMPLOYEES', liability of stockholders to, 175. weekly payment of wages, 175. wages, preferred claims, 175. loans of money on salaries of, 309. to be paid wages in accordance with penal law, 279. to be paid in cash, 175. wages, how reached by execution, 244-246. corruptly influencing, 263. coercion by employers, 266. false statements in regard to employment, 277. attending election, interference with, 274. EMPLOYER'S LIABILITY for injuries, 289-299. EVIDENCE, certificate of incorporation as, 29, 30. ' other papers as, 29, 30. stock-book, 40. books of foreign corporations, 241, 242. copies of books as, 241-243. designation of agent as, 243.. of corporate existence, 247. See Ceetificate; iConsolidation ; Sitbpcena Duces TtecUM; Recced. EXCHANGE of preferred for common stock, 178. or purchase of stock of other corporations, 172. EXECUTOR, etc., holding stock, not personally liable, 176. trust estate, when liable, 176. EXISTENCE, proceedings to extend corporate, 47, 48. See Ceetificate. EXTENSION of business, 159. FEDERAL CORPORATION TAX LAW, 348. FEES, secretary of state, 342. county clerk, 343. comptroller, 343. FELONY, punishment for, 281. FINANCIAL STATEMENT to be furnished stockholders, 186. 414 INDEX [References are to pages.] FIRST MEETING. See Oeganization. FOHEIGN CORPORATION, stock book to be kept, 167. inspection of stock book, 167, 168. to obtain certificate to do business, 34. * proof to be filed by, 35. may sue, when, 47, 248. cannot sue unless certificate is obtained and license tax paid, 34, 203. cannot sue, when, 247. may be sued, when, 248. license tax, 203. franchise tax, 204-206. stock transfer tax, 217-229. local taxation, 193-197. liability of directors, o£ficers and stockholders of, 187. annual reports, 168. name not to resemble that of domestic corporation, 34. "trust," etc., not to form part, of name, when, 34. of adjoining states may purchase property of certain domestic corporations, 157, 158. Teal estate, may hold, 38, 39. summons, service of, 231-233. actions against, 246-248. penal law provisions, 257-281. See Actions ; Agent ; Books ; Costs ; Evidence. FORFEITURE of stock for non-payment, 173, 174. of charter for non-user, 47. for maintaining monopoly, 156. for non-payment of annual tax, 214, 215. for non-payment of one-half of capital stock within one year, 8. FORGERY, signature of oflicer, 274. books, etc.; 274, 275. punishment, 276. FORMATION. See Certificate of Incorporation. FORMS 355. index to forms, xxvi. FRANCHISiE, voluntary sale of property and, 157, 158. FRANOBISE TAX on 'domestic and foreign corporations, 204-206. FRAUD in issue of stock for property, etc., 174, 175. on organization, 267, 268. See Penal Law Provisions. FULL. LIABILITY CORPORATIONS, 9. compare joint-stock associations, 321-324. GENERAL BUSINESS LAW, 300. GENERAL CONSTRUiCTION LAW, 325-339. INDEX 415 [References are to pages.] GENERAL CORPORATION LAW, 21-144. GUARANTEE or guaranty, as part of corporate name, prohibited, 27, 269, 271. GUARANTEE of bonds of domestic corporation, 150. See GUABANTEE. GUARDIAN holding stock, when personally liable, 176. INCORPORATORS, three or more persons may be, 2. qualifications of, 26. frauds by, 267, 268. dissolution by, 92. INiCORPORATION. See Certificate of Incorpobation. INCREASE OF CAPITAL STOCK, method, 178-182. ■notice of meeting to, 179. conduct of meeting, 180. on conversion of bonds into stock, 147. misconduct of officers or directors on, 270. See Capital Stock; Certificate; Par Value. INDEMNITY, as part of corporate name, prohibited, 27, 269, 271. INJUNCTION. See Dissolution; Moneyed Corporation; Volun- tary Dissolution. INSOLVENiCY. See Transfers. INSPECTION OF BOOIiS. See Books; Books of Account; Stock Book. INSPECTORS OF ELECTION, how appointed, 165. directors and officers of moneyed corporations not eligible as, 165. stock books, etc., to be produced on demand of, 40. compensation, 165. oath, 165. violating oath, criminal, 273. certificate of election, 165, 166. stockholders and proxies to take oath, if required, 42. at special elections, 44, 45. INSURANCE, as part of corporate name, prohibited, 27, 269, 271. INTEREST, rate of, 304. how calculated, 306. permitted on advances on collateral security, 307. recovery of excess, 307. See Usury. INVBSTMEiNT, as part of corporate name, prohibited, 27, 269, 271. JOINT-STOCK ASSOCIATION LAW, political contributions forbid-. den, 51, 52. 416 INDEX [References are to pages.1 JUiSTI'CES' COURTS, actions, 253, 254. svunmona, 254. attachment, 254. See Costs. « LABOR, stock may be issued for, 174. LA'BOR LAW PROVISIONS, 286-299. violations of, 279. LABORERS, servants or employees, liability of stockholders to, 175. See Employees. LAWS, conflicting, 129. repealed, 20, 129, 188. construction of repealing laws, 130. LIABILITY, employers', for injury, 289-299. See Stockholders ; Directobs ; Officers. LICENSE TAX payable by foreign corporations, 203, 204. LIEN LAW, 309. LOAN, as part of corporate name, prohibited, 27, 28, 269, 271. LOANS to stockholders prohibited, 164. LOS.T CERTIFICATE of stock, how replaced, 184-186. of incorporation, how replaced, 29. MEETINGS OF DIRECTORS. See Directors. MEETINGS OF STOCKHOLDERS, how called, 31, 51, 160. how called upon failure of directors to call, 43. to increase or reduce stock, 179, 180. consolidation, 10-12. to change number of directors, 161, 162. alteration and extension of businesss, 158. to change place of business, 155. to change par value of shares, 182. dissolution, 93-95. to guarantee bonds i>t other corporations, 150. to authorize preferred stock, 178. to extend corporate existence, 47. to mortgage corporate property, 146. reorganizatioi^ 7. quorimi, 31, 32, 44. See Waiver. MEMBERS;, definition, 24. MERGER, upon purchase of stock of one corporation by another, 156. no effect on rights, etc., 156. See Consolidation; Sale. MISCELLANEOUS PROVISION®, 300-317. INDEX 417 [References are to pages.'\ MONEYED CaRPOUATIONS, definition, 23. directors and officers ineligible as inspectors of election, 165. dissolution, receivers, etc., 74-81. MONOPOLY, contracts for, illegal and void, 300. action against, 301-302. MORTGAGE, corporations may make, 146, 158. need not be filed as chattel mortgage, when, 313. where filed, 314. rights of bondholders on reorganization, 152, 153. reorganization upon sale under mortgage or deed of trust, 151, 152. consent or vote of stockholders to authorize, 147. certificate of consent or vote to be filed, 146, 147. consent or vote not necessary for purchase-money mortgage, 146. See Recced NAME, must not resemble that of domestic or foreign corporation, 27, 34. must indicate a corporation, as distinguished from a natural person, firm or copartnership, 27. change of, 53-57. " trust," " bank," " banking," " insurance," " assurance," " indem- nity," " guarantee," " guaranty," " title,'' " savings," " invest- ment," "loan," "benefit," as part of name, prohibited, when, 27, 28. assumed^ trade name, 263. See Consolidation; Sale. NEGOTIABLE INSTRUMENTS LAW, 315. NON-USER, forfeiture of charter for, 47. NOTIOE of election of directors, 34. NUMBER of directors, 2, 5. of directors, how increased or reduced, 161, 162. of subscribers, 2. of shares, how changed, 182. OATH of inspectors of election to be filed, 165. of stockholders and proxies, when required, 42. OFFICE. See Peincipal Ojfice. OFFICERS to be appointed by directors, 164, 165. eligible as directors on voluntary dissolution, 90. of moneyed corporations not eligible as inspectors of elec- tion, 165. certain officers need not be directors or stockholders, 165. to make and file annual reports, 169. bonds may be required to be given by, 165. liability for money loaned to stockholders, 164. 27 418 INDEX [References afe to pages.] OFFICERS — Continued. liability for making false reports, certificates, etc., 169, 170. misconduet on vote to increase capital stock, 270. other penal provisions, 267-281; •> transfers of property to, prohibited; 183, 184. by-laws to prescribe duties of, 164, 165. removal of, 164, 165. arrest of, 234. See FoKEiGN Cobpobation; Voltjntaby Dissolution. ORGANIZATION must be ^ected within two years> 47. See Cebtificate of Incokpoeation ; Fees; Featjds; Tax. ORGrAfNIZATION TAX, payable before commencement of business, 201. none required on reincorporation, 8. See Tax. PAR VALUE of shares, 2; change of, 182. PARTLY PAID STOCK, how provided- for, 177. See Stogk Cebtificate. PAYMENT OF CAPITAL STOCK, when to be made, 8, 173. cash ' subscriptions^ 173. See Cebiitioate; Subscriptions, PEJSIAL LAW PROVISIONS, 257-281. PERSONAL PROPERTY LAW, 316. PLACE OF BUlSINESS, 2, 4; change of, 155. PLEADINGS, 233. verification, 233. PLEDGEE of stock not personally liable, 176. PLEDGOR of stock may vote thereon, 39. POLITICAL CONraiBHTIONS,, forbidden, 51, 52. See Joint-Stock Associations. POOLING AGREEMENTS. See Voting Tbusts. POWERS OF CORPORATIONS, general, 31, 32. acquire and dispose of property in other states a>nd countries', 33. banking powers prohibited, 39. of district stefm corporations, 15-17. alteration and. extension of business, 158. to extend existence, 47. to bold stock in ot^er corporations, 172. to hold own stock, 163, 164. to consolidate, 10^12. to amend certificates, 80. to borrow money and mortgage property, 146. to increase or reduce stock, 179, 180. INDEX 419 [References are to pages.] POWERS OF COEPORATIOXS — Continued. to authorize preferred stock, 178. " to issue partly paid stock, 177. to exchange preferred for common stock, 178. to guarantee bonds of other domestic corporations, 150. to sell franchises and property, 156, 157. to act as administrator, 253. to condemn land, 18, 19. practicing law, prohibited, 6, 257. limitations on, 6, 7, 30, 31, 39. amending charter, 28. See Foreign Corporations. PREFERENCES. See Transfers. PREFERRED CLAIMS, laborers' wages, 175. PREFERRED CAUSES, 238. PREFERRED STOCK, how pTovided for, 2, 4, 178. i issued on consent of two-thirds of stockholders, 178. exchangeable for common, 178. right to vote, 40. PRESIDENT to be appointed from directors, 164, 165. powers of, controlled by by-laws, 16. , or vice-president, etc., to sign stock and other certificates, etc., . 8, 47, 48, 146, 171. or vice-president, etc., to make and fil^ annual report on de- mand, 168, 169. or vice-president to verify certificate of payment of one-half of capital stock, 8. 8ee Directors. PRINCIPAL OFFICE, 2, 24. of foreign corporation, 35. PROPERTY, stock may be issued for, 174. voluntary sale of, 157, 158. See Real Estate. PROSPECTUS, signed without authority, misdenieanor, 267. PROXY, stockholders may give, 42. to be in writing, 42. duration, 42. oath to be taken if required, 42. filed in oflSce of corporation, 42. penal law, 272, 273. See Inspectors op Election. PUBMCATION of certain directors' by-laws, 31, 32. of notice of annual meeting, 160. summons, 231. PURCHASE or exchange of stock of other corporations, 172. 420 INDEX [References are to pages.} QUORUM, directors, 46. at stockholders' meetings, 31, 32, 44. REAL ESTATE, corporations may acquire, 31, 33. when may be held in other states, 33. when foreign corporations may hold, 38. may be condemned in certain cases, 18, 19. See Mortgage. REAL PROPERTY LAW, 317. RECEIVERS, officers, directors and stockholders eligible as, 90. /See Dissolution; Moneyed Cobporation; Voluntary "Dissolu- tion. RECO^RD of mortgage as presumptive evidence, 148. of mortgage as conclusive evidence, 149. of stock transfers to he kept, 221. RECORDING FEES, 342-346. See Certificate or Incorporation. REDUCING number of directors, 161, 162. REDUCTION OF CAPITAL STOCK, method of, 178-182. ' See Increase op UApital Stock; Certificate; Comptroller. REINCORPORATION, 7. organization tax not required, 8. See Incorporators. REMOVAL of officers, 164, 165. REORGANIZATION of existing corporations, 7. existing rights and liabilities not affected, 8. upon sale of property and franchises, 151. rights of bondholders, 152, 153. See Capital Stock; Certificate; Consent of Stockholders; Tax. REPORTS, certificates, etc., action for making false, 169. false, criminal, 270. See Annual Report; Taxation. SALE of property and franchise, 157, 158. of property of domestic corporation to foreign corporation, 157, 158. SAVINGS, as p#t of corporate name, prohibited, 27, 28. SEAL, corporation to have, 31. on stock certificates, 171. -corporation without seal, 31, note. SECRETARY or treasurer must sign sto6k certificates, 171. or treasurer to verify certificate of payment of one-half of capi- tal stock, 8. or treasurer to make and file annual feport On demand, 168, 169. See Capital Stock; Certificate. INDEX 421 [References are to pages.] SECRETARY OF STATE, fees, 342. SERVANTS, liability of stockholders to, 175. to be paid weekly, 175. SEQUESTRATION, action by judgment creditor for, 64. SHARES OF STOCK, par value, 2. change of par value, 182. may be forfeited, 173, 174. how transferred, 171. may be increased or reduced in number, 182. See Stock. SPECIAL ELECTIONS. See Elections. SPECIAI. MEETINGS, how called, 51. for election of directors, 43. SPECIAL PROCEEDINGS, how commenced, 232. See Summons; SuppirEMENTABY Proceedings. STAMPS. See Stock Tkansfek Stamps. STATE COMPTROLLER. See Compteoller. STATEMENT of affairs demandable by certain stockholders, 186. penal law, 271. STAY of proceedings in collusive . actions, 45. STEAM CORPORATIONS, provisions respecting, 15-17. STOCK, directors to be stockholders unless otherwise provided, 160. when exchangeable for bonds, 147. increase of, when exchangeable for bonds, 147. certificate of, under corporate seal, 171. signed by certain officers, 171. transfer of, 171, 217, 229. transfer of, by stockholder indebted to corporation, 172. of other corporations, when may be held, 171. preferred and common, 178. fraudulent issue of, 174, 175, 268, 276. false statements and rumors regarding, 276. forfeiture of, for non-payment, 174. partly paid, 177. fraudulent issue of, criminal, 268. See Capital Stock; Stock Cebtimcate; Stock Tbansfeb Stamps; Stock and Bonds. (STOOIC AND BONDS, consideration for, 174. may be issued on reorganization, 153. STOCK BOOK to be kept by domestic stock corporation, 166. to be kept by foreign corporation, 167, 168. to be open for inspection, 40, 41, 166-168. extracts to be taken from, 166-168. penalty for refusing to exhibit, 166-168, 271. as evidence of right to vote, 40. 422 INDEX [References are to pages.] STOCK CERTIFICATE, 171. lost or destroyed, how replaced, 184-186. of partly paid stock, 177. /See Penal Law Peovisions. STOCK COEPORATION LAW, 145-189. STOCKHOLDERS, votes for directors, 39, 41. liability to creditors, 175, 187. money not to be loaned to, 164. executors, etc., not personally liable, 175. as pledgees, 175. liable for deb.ts due laborers, servants and employees, 175. meetings to elect directors, 43, 44. liability limited, 175-177. not to transfer stock, when, 183. to have access to list of stockholders, 166. may require sworn statement of affairs, when, 186. transfers of property to, prohibited, 183. names in stock book, 166, 167. note to sell vote, 272, 273. jSee Foreign Cobporations ; Meetings of Stockholdebs ; Pboxy; Stock; Voluntary Dissolution; Vote. STOCK TRANSFER STAMPS to be affixed, 221. canceling, penalty, 220. illegal use, penalty, 221. sale of, 219. for sale at, 229. tax imposed, rate, 217. refund, where erroneously affixed, 224. transactions subject to, 217. penalty for failure to pay, 219. effect of failure to pay, 223.' civil penalty, how recovered, 223. record to be kept, 221. rules of state comptroller's office, 226-229. state comptroller to examine books and papers, 221. STREETS, Etc. See OoNDEMNATtON. SUBPOENA DUCES TECUM, 241. personal atlSndance not required by, 242. SUBSCRIBERS. See Incobporatoes. SUBSCRIPTIONS, amount required to begin business, 2, 7. directors may open books for, 173. when payment to be made, 173. ten per cent, of, when to be paid, 173. fictitious, etc., misdemeanor, 267. • INDEX 423 [References are to pages.} SUMMONSj personal service on domestic corporations, 231. personal service on foreign corporations, 231. service by publication, 232. See Justices' Coubts. SUPPLEMENTARY PROCEEDINGS, 250. TAX, organization, 201, 202. reorganization, 152, note. on increase of capital, 202. on consolidation, 202. license, payable by foreign corporations, 203, 204. jSee Fedebal Coepobation Tax Law ; Obganizatiost Tax; Rein- coEPOEATE; Stock Teansfeb Stamps. TAXATION, annual, franchise tax, 204-206. corporations exempted from, 206. applicable to foreign corporations, 202, 203. local taxation of domestic corporations, 197. local taxation of foreign corporations, 197. capital stock taxed locally, 197- reports to assessors, 200. mode of assessment, 197. preparation of assessment-roll, 198. TAX LAW, 193-226. TITLE, as part of corporate name, prohibited, 27, 28. TRANSFER BOOK to be open to stockiolders, 166. of foreign corporations, 167, 168. penalty for not keeping, 166, 167. TRANSFER OF SaX)CK, 171. by stockholder indebted to corporation, 172. See SToeKHOMJEKS. TRANiSPERS of property to officers, directors and stockholders- when corporation insolvent, etc., 183. See Consolidation; Stockholdees. TREASURER' or secretary must* sign stock certificates, 171. or secretary to verify certificate of paymeat of one-half of capital stock, 8. or chief fiscal officer to give financial statement under oath to certain stockholders, 186. to make and file annual report on demand, 168, 169. See DlEECTOBS ; Officees ; Seceetaet. TRUST, as part of a corporate name, prohibited; 27, 28. TRUSTEE holding stock when individually liable, 176. TRUSTEES. See Dibectobs. TRUSTS. See Combinations; Votino Teusts. 424 INDEX [References are to pages.l UNITED STATES COEPORAITON TAX LAW, 348. USURY, 304-308. defense of, prohibited, 305. transfer of cause of action for, 305. restitution for, 308. VIOE-PRESIDENT. See President. VOLUNTARY DISSOLUTION by directors, 82-fll. by incorporators, 92. by directors and stockholders, 93-95. by directors, 82-91. ^ when a majority of directors may petition, 82, 83. when directors are equally divided, 83. contents of petition, schedules, etc., 84. affidavit to same, 85. presentation of petition, etc., 85. order to show cause to be published, 85, 86. order to show cause to be served on creditors and stockholders, 86. hearing; report of referee> 88. original papers may be used on hearing, 88, 89. application for final order, 89. permanent receiver may be appointed on final order, 89, 90. sales, transfers and judgments void, when, 90. certain corporations excepted, 91. See DissoLtTTioN. VOTE. ' each share of stock entitled to one, 39. cumulative voting, 40, 41. by proxy, 42. oath may be required from voter, 42, 43. stock book, evidence of right to, 40. preferred stock, 40. deprivation of right to, 40. See Bonds; Cumulative Voting. VOTING TRUSTS, agreements, 41. limited as to time, 41. WAGES. See Employees. WAIVER of notice and time, 51. WATER companies, 18. [Whole Numbeb of Pages, 457.]