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Such party is not bound to account until first publication of notice of appointment of receiver. Id.

What notice insufficient in such case. Id.

Injunction against creditors of dissolved corporation will not be so modified, after appointment of receiver, as to permit entry of judgment in prior action and issue of execution, before substitution of receiver as party defendant. Matter of Vertical T. B. Co., 38 N. Y. St. Rep., 528.

Order for stay of all proceedings, on appeal from order annuling charter, will be denied, where order has been granted directing receiver to make no sale or distribution of property until further order of court. People v. N. R. S. R. Co., 25 N. Y. St. Rep., 569.

Stock can not be transferred so as to pass a legal title after the dissolution of the corporation. James v. Woodruff, 2 Denio, 574. In such case, the interests of the several stockholders become equitable rights to a proportionate share of the assets after payment of the debts. Id.

A stockholder who is indebted to the company at the time of its dissolution, is only entitled to his share of the effects after deducting the amount which he may James v. Woodruff, 2 Denio, 574.


An assignee of a stockholder in a dissolved corporation takes the interest of the assignor, subject to all claims which the corporation has against him. James v. Woodruff, 2 Denio, 574.

Where the debtor of a dissolved corporation becomes a purchaser of its stock, his debt will be deducted from his share of the assets. James v. Woodruff, 2 Denio, 574. His assignee or vendee takes it subject to a like deduction. Id.

The appointment of a receiver after the commencement of an action to recover the unpaid balance of the subscription to the capital stock does not cause the suit to abate, but it may be continued by the receiver in the name of the original party. Phoenix W. Co. v. Badger, 6 Hun, 293; Albany, etc., Co. v. Van Vranken, 42 How., 281; Tracy v. First Nat. Bk., 37 N. Y., 523.

§31. Forfeiture for non-user.-If any corporation, except a railroad, turnpike, plank-road or bridge corporation, 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 incorporation, its corporate powers shall cease.

Former section 21.

See section 7, title 3, chap. 18, part 1, R. S., and section 8, chap. 611 of 1875, now repealed.

Action to dissolve corporation may be maintained, when it has suspended its ordinary and lawful business for at least one year. People v. Seneca L. G. and W.

Co.. 52 Hun, 174.

Government, creating corporation, can alone, as general rule, enforce cause of forfeiture. Id.

Proceedings to dissolve by directors is no bar to action by people to dissolve because of forfeiture of charter. Id.

Notice of voluntary application to dissolve corporation must be served upon Attorney-General, otherwise order is void. Id.

Action for forfeiture of charter on ground of suspension of business can not be maintained unless continued for a year. People v. A. A. R. R. Co., 125 N. Y., 513.

Omission to run trains for five days will not suffice. Id.

Failure to observe chap. 529 of 1887, is not legal cause for forfeiture. Id. Neither six days discontinuance of business, nor exactions from its employees of more than ten hours labor a day, is ground for action to dissolve corporation. People v. A. A. R. C., 57 Hun, 378.

Code authorizes action to dissolve corporation when it has violated any provision of law, whereby it has forfeited its charter or become liable to be dissolved by abuse of its power. People v. North R. S. R. Co., 121 N. Y., 582.

What constitutes actual corporate conduct. Id.

Leave to renew action to forfeit charter will not be granted, where corporations, relying upon discontinuance of former proceedings, has increased its capital and made contracts to complete its works. Matter of People v. E. G. L. Co., 32 N. Y. St. Rep., 1128.

It is the general principle that a corporation, by omitting to perform a duty imposed by its charter or to comply with its provisions, does not ipso facto lose its corporate character or cease to be a corporation, but simply exposes itself to the danger of being deprived of its corporate character and franchises by the judg ment of the court in an action instituted for that purpose by the Attorney-General in behalf of the people. Brooklyn S. T. Co. v. City of Brooklyn, 78 N. Y., 524. Still the Legislature has the power to provide that a corporation may lose its corporate existence without the intervention of the courts, by any omission of duty or violation of its charter or default as to limitations imposed. Id. It is immaterial whether such provision is contained in, and the corporation is organized under, a general law or a special charter. Id. In such case it needs no action or judicial procedure to declare or complete a forfeiture of the charter and loss of corporate power. Matter of Brooklyn, etc., R. R. Co., 75 N. Y., 335; 72 id., 245. The statute executes itself. Id. The loss of its corporate rights and powers may be asserted by any one whose rights may be affected by its assumption of corporate powers. Id.

Cause of forfeiture does not per se work forfeiture without judicial determination, unless it was intended that the statute should execute itself. Matter of Brooklyn E. R. Co., 32 N. Y. St. Rep., 1065; aff'd 35 id., 45.

A forfeiture of the franchises of a corporation, unless there is some special provision by statute, can be enforced only by the sovereign power to which the corporation owes its life, in some proceeding instituted in behalf of such sovereignty. Denike v. N. Y. & R. L. & C. Co., 80 N. Y., 599.

An action to dissolve such corporation can not be maintained by a portion of the stockholders. Id.

In the absence of proof of fraud, mismanagement or wrong-doing on the part of the directors, it is discretionary with the court to appoint a receiver of the property of the corporation, though utterly insolvent; the stockholders have no absolute right to such appointment. Id.

A corporation can not be said to have committed an act of insolvency, or to have neglected or refused to pay its obligations, because its demand notes remain outstanding until peyment has been demanded. Id.

An unlawful lease of the corporate property does not give a portion of the stockholders a standing in a court of equity to ask for a dissolution of the corporation. Id.

A corporation, which has been enjoined from the exercise of its corporate fran chises and deprived of its property, and thus ceased to exist for all practical purposes, is not thereby actually dissolved. Kincaid v. Dwinelle, 59 N. Y., 548.

To effect a dissolution of a corporation there must be a judgment of a court of competent jurisdiction declaring it dissolved. Id. Hollingshead v. Woodward, 35 Hun, 410.

Until such judgment, creditors may proceed by suit against the corporation, unless restrained by injunction. Id.; People v. President, etc., 9 Wend., 351; Matter of Ref. Pres. Ch., 7 How., 476; Mickles v. Rochester City Bk., 11 Paige, 118.

A corporation can not be held to be actually dissolved till so adjudged and determined, either by judicial sentence or sovereign power. Kincaid v. Dwinelle, ante.

In Slee v. Bloom, 19 Johns., 456, the corporation was held to be dissolved by the non-election of trustees and non-user of the franchises for a length of time, and a sale by the sheriff of all its real and personal property on execution. The acts done and suffered to be done, were regarded as equivalent to a direct surrender of the charter.

Until judgment dissolving the corporation and ending its existence, a contract can be enforce against the company as well after as before the appointment of a receiver. Pringle v. Woolworth, 90 N. Y., 502.

A corporation may appeal from a judgment declaring it to be dissolved, and from the orders based on the judgment or growing out of the proceedings taken to enforce it. Kelsey v. Pfaudler P., etc., Co., 15 Abb. N. C., 427.

The dissolution of a corporation must be judicially ascertained and declared. Plass v. Housman, 17 N. Y. St. Rep., 671.

§ 32. Extension of corporate existence. Any domestic corporation at any time within three years before the expiration thereof, may extend the term of its existence beyond the time specified in its

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original certificate of incorporation, or by-law, or in any certificate of extension of corporate existence, by the consent of the stockholders owning two-thirds in amount of its capital stock, if not a stock corporation, by the consent of two-thirds of its members, in and by a certificate signed and acknowledged by them and filed in the offices in which the original certificates of its incorporation were filed, if at all, and, if not, then in the offices where certificates of incorporation are now required by law to be filed, and the officers with whom the same may be filed shall thereupon record them in the books kept in their respective offices for the record of such certificates, and make a memorandum of such record in the margin of the original certificate in such book, if any, and thereupon the time of existence of such corporation shall be extended, as designated in such certificate, for a term not exceeding the term for which it was incorporated in the first instance. If the term of existence of any domestic corporation shall have expired and it shall be made satisfactorily to appear to the supreme court that such corporation was legally organized pursuant to any law of this state, and that through mistake it shall have issued its bonds payable at a date beyond the date fixed in its charter or certificate of incorporation for the expiration of its corporate existence, and such bonds shall be unmatured and 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 ecording of a certificate reviving the existence of such corporation, upon such conditions and with such limitations as such order shall specify, and extending such corporate existence for a term not exceeding the term for which it was originally incorporated. Upon filing and recording such certificate in the same manner as a certificate of extension of corporate existence duly issued before the expiration of the existence of a domestic corporation is 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.

If a corporation formed under or subject to the banking law, such certificate shall not be filed or recorded unless it shall have indorsed thereon the written approval of the superintendent 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 which such turnpike or bridge is located, approving of and authorizing such extension.

Every corporation extending its corporate existence under this chapter or under any general law of the state shall thereafter be subject to the provisions of this chapter and of such general law, notwithstanding any special provisions in its charter, and shall thereafter be deemed to be incorporated under the general laws of the state relating to the incorporation of a corporation for the purpose of carrying on the business in which it is engaged, and shall be subject to the provisions of such laws.

Former section 22 amended.

See section 2, chap. 29 of 1857, section 2 of chap. 12 of 1867, section 1, chap. 937 of 1867, and section 29, chap. 611 of 1875, now repealed.

See People ex rel. Clauson v. Newburgh, etc., R. R. Co., 86 N. Y., 1.

§ 33. Conflicting corporate laws. If in any corporate 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 corporation law, but not in conflict with it, such provision in such other law shall be deemed to be in addition to the provision in this chapter or in the stock corporation law relating to the same subject-matter, and both provisions shall, in such case, be applicable.


§ 34. Laws repealed. Of the laws enumerated in the schedule. hereto annexed, that portion specified in the last column is repealed. Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby repealed.

Former section 23.

People v. O'Brien, 111 N. Y., 1.

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§ 35. Saving clause. The repeal of a law or any part of it specified in the annexed schedule shall not affect or impair any act done, or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to May 1, 1891, under or by virtue of any law so repealed, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such law had not been repealed. All actions and proceedings, civil or criminal, commenced under or by virtue of the laws so repealed, and pending on April 30, 1891, may be prosecuted and defended to final effect in the same manner as they might under the laws then existing, unless it shall be otherwise specially provided by law.

Former section 24.

§ 36. Construction. The provisions of this chapter, and of the stock corporation law, the railroad law, the transportation corporations law, and the business corporations law, so far as they are substantially the same as those of laws existing on April 30, 1891, shall be construed as a continuation of such laws modified or amended according to the language employed in this chapter, or in the stock corporation law, the railroad law, the transportation corporations law, or the business corporations law, and not as new enactments.

References in laws not repealed to provisions of laws incorporated into the general laws herein before enumerated and repealed, shall be construed as applying to the provisions so incorporated.

Nothing in this chapter or in the other general laws hereinbefore specified shall be construed to amend or repeal any provision of the Criminal or Penal Code or to impair any right or liability which any existing corporation, its officers, directors, stockholders or creditors may have or be subject to or which any such corporation, other than a railroad corporation, had or was subject to on April 30, 1891, by virtue of any special act of the legislature creating such corporation or creating or defining any such right or liability, unless such special act is repealed by this chapter.

Former section 25 amended.

§ 37. Law revived.-Chapter three hundred of the laws of eighteen hundred and fifty-five, entitled "An act to incorporate the Baptist Historical Society of the city of New York," which was inadvertently repealed by the transportation corporations law, is revived and reenacted, and shall be of the same force and effect as if it had not been repealed.

§ 38. When notice or lapse of time unnecessary.- Whenever under the provisions of any of the corporate laws a corporation is authorized to take any action after notice to its members or after the lapse of a prescribed period of time, such action may be taken without notice and without the lapse of any period of time, if such action be authorized or approved, and such requirements be waived in writing by every member of such corporation, or by his attorney thereunto authorized.

Added by chap. 672 1895. Took effect May 14, 1895.

§ 39. 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 convened 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.

Added by chap. 672 of 1895. Took effect May 14, 1895.

§ 40. Alteration and repeal of charter.-The charter of every corporation shall be subject to alteration, suspension and repeal, in the discretion of the legislature.

Added by chap. 672 of 1895. Took effect May 14, 1895.


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