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should not become effective or of binding force until a certain other contract or syndicate agreement had been signed and that in fact such syndicate agreement never was signed.

The trial took place before a justice of the Supreme Court and a jury and at the close of the trial the trial justice submitted to the jury for answer two questions as follows:

1. Were the officers who signed or directed the signing of the alleged agreement, that is, the agreement in suit here, authorized by the defendant corporation to execute it as its corporate act and affix thereto its corporate seal?

2. Was the alleged agreement executed upon the condition that it was not to become effective until the so-called Clark agreement for the pooling of the securities of the United States Ship Building Company shall have been executed by all the holders of said securities other than the plaintiff?

The jury answered the first question in the affirmative and the second in the negative. A motion was then made to set aside the verdict and subsequently the court disregarded the findings of the jury and dismissed the complaint. An opinion was written by the trial justice which is reported in 55 Miscellaneous Reports, 110.

The plaintiff appealed from the judgment entered upon the dismissal of said complaint and such judgment was subsequently affirmed in the Appellate Division (124 App. Div. 438). This appeal is taken from such judgment of affirmance. Further facts will be found in the opinion.

Howard Taylor, Henry B. Anderson and William Williams for appellant. The contract is plainly within both the letter and spirit of the powers of a trust company as enumerated in the Banking Law of this state. (L. 1892, ch. 689, § 156.) The presumption arising from the company's seal on the contract that defendant's officials had authority to execute such contract made the case one for the jury independent of further evidence for plaintiff. (Quackenboss v. G. & R. F. Ins. Co., 177 N. Y. 71; Ring v. L. I. R. E. E. Co., 93 App. Div. 442; N. E. I. Co. v. G. E. R. R. Co., 91 N. Y.

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154; Jones v. U. Ry. Co., 18 App. Div. 267; Justice v. Lang, 52 N. Y. 323; M. L. Ins. Co. v. Y. C. Nat. Bank, 35 App. Div. 218; Jourdan v. L. I. R. R. Co., 115 N. Y. 380; Moss v. Averill, 10 N. Y. 449; Braemar v. Stanton, 110 App. Div. 167; Hoyt v. Thompson, 19 N. Y. 207.) Both through the by-laws and also through the practice of the company original authority was vested in Mr. Dresser for the execution of this contract, and this independent of any knowledge thereof by the board or executive committee. (Bogart v. N. Y. & L. I. R. R. Co., 118 App. Div. 50; Hooke v. Financier Cc., 99 App. Div. 186; M. & F. Bank v. Smith, 19 Johns. 115; Powers v. Schlicht, 23 App. Div. 380; M. Co. v. A. C. Bank, 104 U. S. 192; Phillips v. Campbell, 43 N. Y. 271; S. P. & P. Co. v. Moore, 183 U. S. 642; Olcott v. T. R. R. Co., 27 N. Y. 546; Chambers v. Lancaster, 160 N. Y. 342; Curnan v. D. & O. R. R. Co., 138 N. Y. 480.)

D-Cady Herrick, James J. Farren and Francis S. Hutchins for respondent. The defendant respondent had no power to enter into the contract in question. (People ex rel. Tiffany v. Campbell, 144 N. Y. 166; Davis v. Railroad, 131 Mass. 258; Caldwell v. M. R. L. Assn., 53 App. Div. 245; Leavitt v. Yates, 4 Edw. Ch. 134; Talmage v. Pell, 7 N. Y. 328; N. Bank v. Jones, 95 N. Y. 115; Jemison v. C. S. Bank, 122 N. Y. 135; Sistare v. Best, 88 N. Y. 527; H. M. Co. v. A. M. M. & M. Co., 62 Fed. Rep. 361.) The contract being one which the defendant had no power to make, it cannot be enforced against it. (C. T. Co. v. P. P. C. Co., 139 U. S. 24; F. Nat. Bank v. Hawkins, 174 U. S. 364; McCormack v. M. Nat. Bank, 165 U. S. 550; Jemison v. C. S. Bank, 122 N. Y. 135.) The fact that such contract was executed by the vice president of the company, by direction of its president, does not constitute it a contract of the corporation. (Cook on Corp. § 716; Morawetz on Corp. § 527; P. Bank v. S. A. R. C. Church, 109 N. Y. 512; Wilson v. K. C. E. R. R. Co., 114 N. Y.

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Opinion of the Court, per CHASE, J.

487; Leary v. A. B. Co., 77 App. Div. 6; Bangs v. N. M. Co., 15 App. Div. 522; Risley v. I. B. & W. R. Co., 1 Hun, 202.) The officers of a corporation can, in its name, transact only such business as the corporation has a right to engage in. (Wilson v. K. C. E. R. R. Co., 114 N. Y. 487; Leary v. A. B. Co., 77 App. Div. 6; Alexander v. Cauldwell, 83 N. Y. 480; F. Nat. Bank v. 0. Nat. Bank, 60 N. Y. 278; Nat. Park Bank v. G. A. M. W. & S. Co., 116 N. Y. 281; B. T. Co. v. Dessau Co., 45 App. Div. 475.) The fact that the seal of the corporation was attached to the contract does not make it the contract of the corporation. (Quackenboss v. G. R. F. Ins. Co., 177 N. Y. 71; Morawetz on Corp. § 617; Thompson on Corp. §§ 5055, 5105.) The contract was never ratified by the defendant, either expressly or by acquiescence. (Kramrath v. City of Albany, 127 N. Y. 575; Matter of Niland, 193 N. Y. 180; Risley v. I. B. & W. R. Co., 1 Hun, 202; Camacho v. H. B. N. & E. Co., 2 App. Div. 369; Bright v. C. I. S. Y. Co., 83 Hun, 482; Dent v. N. A. S. Co., 49 N. Y. 390.)

CHASE, J. We concur in the result reached by the majority of the Appellate Division. The importance of the decision in this case in its relation to the administration of justice seems to require a written statement of opinion by this court, although in doing so we, to some extent, substantially repeat. what has been well said herein by Justice LAUGHLIN.

The defendant was organized in the name of "Trust Company of the Republic" March 29, 1902, pursuant to article 4 of the Banking Law of this state as it then existed. Its name was changed October 12, 1903, to "Commonwealth Trust Company of New York." The statute as it existed at that time defines a trust company to mean a domestic corporation "formed for the purpose of taking, accepting and executing such trusts as may be lawfully committed to it, and acting as trustee in the cases prescribed by law, and receiving deposits of moneys and other personal property, and issuing its obligations therefor, and of loaning money on real or personal secu

Opinion of the Court, per CHAse, J.

[Vol. 196.

rities." (Banking Law [chapter 689, Laws of 1892], sec. 2.) The powers of a trust company are expressly defined by statute and so far as applicable to this decision they are:

"1. To act as the fiscal or transfer agent of any state, municipality, body politic or corporation; and in such capacity to receive and disburse money, and transfer, register and countersign certificates of stock, bonds or other evidences of indebtedness.

"2. To receive deposits of trust moneys, securities and other personal property from any person or corporation, and to loan money on real or personal securities.

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"4. To act as trustee under any mortgage or bond issued by any municipality, body politic or corporation, and accept and execute any other municipal or corporate trust not inconsistent with the laws of this state.

"5. To accept trusts from and execute trusts for married women, in respect to their separate property, and to be their agent in the management of such property, or to transact any business in relation thereto.

"6. To act under the order or appointment of any court of record as guardian, receiver or trustee of the estate of any minor, the annual income of which shall not be less than one hundred dollars, and as depository of any moneys paid into court, whether for the benefit of any such minor or other person, corporation or party.

"7. To take, accept and execute any and all such legal trusts, duties and powers in regard to the holding, management and disposition of any estate, real or personal, and the rents and profits thereof, or the sale thereof, as may be granted or confided to it by any court of record, or by any person, corporation, municipality or other authority; and it shall be accountable to all parties in interest for the faithful discharge of every such trust, duty or power which it may so accept.

"8. To take, accept and execute any and all such trusts and powers of whatever nature or description as may be conferred upon or intrusted or committed to it by any person or persons,

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Opinion of the Court, per CHASE, J.

or any body politic, corporation or other authority, by grant, assignment, transfer, devise, bequest or otherwise, or which may be intrusted or committed or transferred to it or vested in it by order of any court of record, or any surrogate, and to receive and take and hold any property or estate, real or personal, which may be the subject of any such trust.

"9. To purchase, invest in, and sell stocks, bills of exchange, bonds and mortgages and other securities; and when moneys, or securities for moneys are borrowed or received on deposit, or for investment, the bonds or obligations of the company may be given therefor, but it shall have no right to issue bills to circulate as money.

"10. To be appointed and to accept the appointment of executor of or trustee under the last will and testament, or administrator with or without the will annexed, of the estate of any deceased person, and to be appointed and to act as the committee of the estates of lunatics, idiots, persons of unsound mind and habitual drunkards." (Banking Law, sec. 156.)

Among the statutory restrictions upon a trust company are the following: "No loan exceeding one-tenth of its capital stock, shall be made by any such corporation, (directly or indirectly) to any director or officer thereof and such loan to such director or officer shall not be made without the consent of a majority of the directors." (Banking Law, sec. 156, sub. 11.)

"No such corporation shall hold stock in any private corporation to an amount in excess of ten per cent of the capital of the corporation holding such stock." (Banking Law, sec. 159.)

It is also provided by statute that "No bond or other security, except as hereinafter (thereinafter) provided, shall be required from any such corporation for or in respect to any trust, nor when appointed executor, administrator, guardian, trustee, receiver, committee or depositary." (Banking Law, sec. 158.) The affairs of every such corporation shall be managed and its corporate powers exercised by a board of directors. (Banking Law, sec. 161.)

The General Corporation Law (Laws of 1892, chapter 687)

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