possess the property and franchises 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 required 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, specifying the classes thereof, whether common or preferred, and the amount of and rights pertaining to each class.

3. The number of directors, nor less nor more than the number required by law for the old corporation, who shall manage the affairs of the new corporation, and the names and post-office addresses of the directors for the first year. They may insert in such certificate any provisions relating to the new corporation, or its management, contained in any plan or agreement which may have been entered into as provided in section ten of this chapter. Such corporation shall be vested with, and be entitled to exercise and enjoy, all the rights, privileges and franchises, which at the time of such sale belonged to, or were vested in the corporation last owning the property sold, or its receiver, and shall be subject to all the provisions, duties and liabilities imposed by law on that corporation. Any proceedings heretofore taken in substantial compliance with this section as hereby amended, and any and all incorporations based thereon are hereby ratified and confirmed.

(L. 1890, ch. 564, § 3, as amended by L. 1892, ch. 688, § 3; L. 1901, ch. 354, § 1; L. 1902, ch. 80, § 1; L. 1904, ch. 706, § 1.)

Any number of persons may, at a foreclosure sale, purchase the corporate property for themselves, and organize a new company, which will possess all the powers of the prior corporation, and be subject to the provisions imposed by law on such corporations. Vatable v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 49.

§ 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, mortgagees and stockholders, or any of them, of the corporation. owning such property and franchises at the time of sale, and for the representation of such interests in the bonds or stock of the new corporation to be formed, and may therein regulate voting by the holders of the preferred and common stock at any meeting of the stockholders, and may provide for, and regulate voting by the holders, and owners of any or all of the bonds of the corporation, foreclosed, or of the bonds issued or to be issued by the new corporation; and such right of voting by bondholders shall be exercised in such manner, for such period, and upon such conditions, as shall be therein described. Such plan or agreement must not be inconsistent with the laws of the state and shall be binding upon the corporation, until changed as therein provided, or as otherwise provided by law. The new corporation when duly organized, pursuant to such plan or agreement and to the provisions of law, may issue its bonds and stock in conformity with the provisions 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 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.

(L. 1890, ch. 564, as re-enacted by L. 1892, ch. 688, § 4, and amended by L. 1901, ch. 354, § 1.)

§ 11. 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 mortgages or deeds of trust. Neither the sale nor the formation of the new corporation shall interfere with the authority 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. (L. 1890, ch. 564, § 5, as re-enacted by L. 1892, ch. 688, § 5.)

§ 12. Municipalities may assent to plan of readjustment. 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 or reorganization which lawfully provides for the formation of a new corporation, and the issue of stock therein to the proper authorities or officers of such cities, towns or villages in exchange for the stock of the old or former corporation by them respectively held. Any such commissioners, corporate authorities or other proper officers may assign, transfer or surrender the stock so held by them in the manner required by such plan, and accept in lieu thereof the stock issued by such new corporation in conformity therewith.

1. Under this section, it is entirely optional with the stockholder whether he will come in under the plan and join the new company. Vatable v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 49.

2. Trust company, appointed on reorganization of railroad, to fix amount to be paid by stockholders for new stock, etc., need not give notice of time and place of hearing. Gernsheim v. Cent. T. Co., 40 N. Y. St. Rep. 967, 16 N. Y. Supp. 127.

3. Stockholder who acquired stock from those who voted for plan of reorganization, cannot insist upon its being ultra vires, or enjoin its accomplishment. Hollins v. St. P. M. & M. R. R. Co., 29 N. Y. St. Rep. 208, 9 N. Y. Supp. 909. 4. Contract construed so that rights of non-assenting parties cannot be changed by majority vote of certificate holders, taken after creation of new corporation. Dutenhoffer v. A. R. R. Co., 38 N. Y. St. Rep. 710, 14 N. Y. Supp. 558.

5. Stockholder of former corporation, who did not sign agreement to exchange for stock of new corporation, is not prejudiced by action thereunder. Bean v. A. L. & T. Co., 34 N. Y. St. Rep. 620.

§ 13. Change of place of business. Any stock corporation 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 authorized, either by unanimous consent of the stockholders expressed in writing and duly acknowledged and filed in the office of the secretary of state, or by a vote of the stockholders of said corporation at a special meeting of stockholders called for that purpose. When such change shall be authorized by the stockholders as herein provided, the president and secretary and a majority of the directors of such corporation shall sign a certificate stating the name of said corporation, the city, town and county where its principal office and place of business was originally located, and to which it may have been subsequently changed, and the city, town and county to which it is desired to change its said principal office and place of business, and that it is the purpose of said corporation to actually transact and carry on its regular business from day to day at such place, and that such change has been authorized as herein provided, and the names of the directors of said corporation and their respective places of residence, which certificate shall be verified by the oaths of all the persons signing the same, and when so signed and verified, shall be filed in the office of the secretary of state and a duplicate thereof in the office of the clerk of the county from which said principal office and place of business is about to be removed or changed, and another in the office of the clerk of the county to which said removal or change is to be made, and thereupon the principal office and place of business of such corporation shall be changed as stated in said certificate. (L. 1896, ch. 929, § 1, amended by L. 1905, ch. 489, § 1.)

14. Combinations prohibited. -No domestic stock corporation and no foreign corporation doing business in this state shall combine

with any other corporation or person for the creation of a monopoly or the unlawful restraint of trade or for the prevention of competition in any necessary of life.

1. Combination of corporations to prevent competition and control prices subjects franchises to forfeiture. People v. North R. S. R. Co., 19 N. Y. St. Rep. 853, 3 N. Y. Supp. 401.

2. Transaction between defendant and central association was held trust and violation of its charter, and failure in performance of its corporate duties, so material and important as to justify judgment of dissolution. People v. N. R. S. R. Co., 121 N. Y. 582, 9 L. R. A. 33, 18 Am. St. Rep. 842, 24 N. E. 834.

3. Any combination, to prevent competition in its broad and general sense, and to control, and thus, at will, enhance prices to the detriment of the public, is a legal monopoly. People v. North R. S. R. Co., 22 Abb. N. C. 164.

4. Receiver of one member of trust cannot maintain an action for accounting or dissolution. Gray v. Oxnard Bros. Co., 31 N. Y. St. Rep. 968, 11 N. Y. Supp. 118. 5. Receiver of corporation belonging to trust is entitled, as between him and corporation, to assets. Pittsburgh C. Co. v. McMillin, 119 N. Y. 46, 7 L. R. A. 46, 23 N. E. 530.

6. In this State, there can be no partnership of separate and independent corporations, either directly or indirectly, through medium of trust. People v. N. R. S. R. Co., 121 N. Y. 582, 9 L. R. A. 33, 18 Am. St. Rep. 842, 24 N. E. 834.

§ 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 corporation 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 become, 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 corporation, 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 corporation 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.

(L. 1896, ch. 932, § 1, and amended by L. 1900, ch. 476, § 1; L. 1902, ch. 98, § 1.)