in which he has been permitted to transact such business.

In such case the

officer's authority does not depend so much upon his official title or on the theoretical nature of his office as upon the duties that are assigned to him and which he is in the habit of performing. Second Nat. Bank of Allentown v. Pottier & Stymus Mfg. Co., 36 Supr. 216, 2 N. Y. Supp. 644. Citing Nat. Park Bank v. German-Am. Mutual Warehousing Co., 53 Supr. 367, and Fifth Ward Savings Bank v. The First Nat. Bank, 48 N. J. Law R. 513, 5 Atl. 318.

14. Although a person is presumed to know the extent of an officer's powers to bind a corporation, yet where a corporate contract made by him is on its face of such a character as he might ordinarily execute in the performance of his official duties, but is really without his authority to make because of some extrinsic fact as the purpose or object for which the contract is made, such contract is binding on the corporation, the person with whom the contract is made is not bound to inquire as to such extrinsic fact. Second Nat. Bank of Allentown v. Pottier & Stymus Co., supra. Citing Farmers and Mechanics' Bank v. Butchers and Drovers' Bank, 16 N. Y. 129, 130, 69 Am. Dec. 678.

15. In the absence of a legally authorized treasurer of a corporation any person who has general management of its business or any director has power to indorse the corporation's name for the purpose of collecting commercial paper made payable to its order. Craig Medicine Co. v. Merchants' Bank, 59 Hun, 561, 14 N. Y. Supp. 16.

16. The cashier of a bank has authority incident to his office to secure a loan to the bank by pledge of its property or funds; especially where there is a by-law giving him charge and supervision of the bank, its loans, discounts and other active business, and the right to exercise his own judgment as to such matters when not otherwise directed. Coats v. Donnell, 94 N. Y. 168.

17. It is no part of the business of a corporation to act as agent through its president in selecting attorneys and compromising claims for outside parties, and the bank cannot be held liable for such transactions of its president when he had no special authority, and the bank has in no way been benefited thereby. Ryan v. Manufacturers and Merchants' Bank, 9 Daly, 308.

18. A director owes services to the corporation for which reason all services rendered by him are presumed to be rendered as director there is no implied promise to pay therefor. It is only where the services are not within his duties as director, and an express promise or an expectation on the part of the corporation to pay is shown, that the corporation is under any liability therefor. Gill v. N. Y. Cab Co., 48 Hun, 524, 1 N. Y. Supp. 202. Citing Smith v. Long Island R. R. Co., 102 N. Y. 190, 6 N. E. 397.

19. "The same reason may not exist for the application of the rule to a stockholder not a director who has become an officer of the corporation. But he has a pecuniary interest in its management and business. And where he assumes the duties of the office and performs them without some agreement or provision for compensation the presumption, in view of his relation and interest, may properly arise that he performs the official services gratuitously. This proposition. cannot be made dependent on the proportionate amount of stock held by him." Mather v. The Eureka Mower Co., 118 N. Y. 629, 23 N. E. 993.

§ 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 inspectors 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 incorporation. 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 compensation 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 faithfully 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 of the county in which such election or meeting shall be held, with a certificate of the result of the vote taken thereat.

(L. 1890, ch. 564, § 28, as amended by L. 1892, ch. 688, § 28.)

1. Who may be inspectors of corporate election. Matter of Chenango Co. Mut. Ins. Co., 19 Wend. 635. See Matter of Mohawk & H. R. R. Co., id. 135.

2. Inspectors of a corporate election may be candidates at such election. Ex parte Willocks, 7 Cow. 402.

3. An election, under the appointment and authority of one inspector, is void Matter of Lighthall Mfg. Co., 47 Hun, 258. Such appointment does not satisfy the language of the law, and he has no authority to hold an election. Id. 4. An election of directors will not be set aside on a summary application to the supreme court for that purpose, on the ground that the inspectors were not sworn in the form prescribed by the statute. Matter of Mohawk, etc., R. R. Co., 19 Wend. 135. Such election will not, it seems, be set aside upon such application, though no oath whatever was administered to the inspectors, if no objection was interposed at the time of the election. That they were duly appointed and entered on the discharge of the duties of their office, is sufficient. In such case, they are inspectors de facto. Id.

5. Neglect to administer oath in the form described by statute, or of any oath whatever, will not be grounds on which to set aside an election, if the inspectors were duly appointed and entered upon the duties of their office in good faith. In re Mohawk, etc., R. R. Co., 19 Wend. 135; In re Chenango M. Ins. Co., id. 635.

32. Books to be kept.

Every stock corporation shall keep at its office correct books of account of all its business and transactions, and a book to be known as the stock book, containing the names, alphabetically arranged, of all persons who are stockholders of the corporation, showing their places of residence, the number of shares of

1

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 therefrom. No transfer of stock shall be valid as against the corporation, its stockholders and creditors for any purpose except to render the transferee liable for the duties of the corporation to the extent provided for in his 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 corporation and the books of account of every bank shall be presumptive evidence of the facts therein so stated in favor of the plaintiff, in any action or proceeding against such corporation or any of its officers, directors or stockholders. Every corporation that shall neglect or refuse to keep or cause to be kept such books, 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 or refuse to exhibit the same, or to allow them to be inspected and extracts taken therefrom as provided in this section, the corporation and such officer or agent shall 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.

1. A refusal to permit a transfer of stock on its books renders corporation liable for damages, and the measure of damages is the highest price of the stock at any time between the refusal and commencement of suit. A blank transfer signed and sealed by holder is valid, and the transferee is authorized to fill up by writing a transfer and power of attorney above the signature. Bank of Buffalo v. Kortright, 22 Wend. 348, 34 Am. Dec. 317, approved 55 N. Y. 46, 14 Am. Rep. 173.

2. Dividends are to be paid to those book, regardless of any secret transfer. 770, 14 Am. Dec. 526, S. C. 8 id. 398.

who appear as owners on the transfer Bank of Utica v. Smalley, etc., 2 Cow.

3. The object of the statute is to enable the stockholders at all reasonable times, and for thirty days before an election, to examine the books containing transfer of stocks and names of stockholders, to enable them to see who are qualified voters and to confer with them in relation to the election, and memoranda may be taken from the books. The statute, though penal toward those who violate it, is in the main highly beneficial and should be equitably construed. Cotheal v. Brouwer, 5 N. Y. 567.

4. This does not cut off the right of stockholders of corporations to examine its transfer books for the proper purpose, and on proper occasions, at other times; and court may interfere by mandamus whenever a proper case is shown, and compel an exhibition of the books. People ex rel. Hatch v. L. S. & M. S. R. R.

Co., 11 Hun, 5 and 6,

5. Richmond v. P. M. S. S. Co., 50 Barb. 281, it was held (same case) 3 Abb. (N. S.) 364, that a stockholder cannot be deprived of his right to inspect the books of the company because they are kept in a particular way, or because they contain along with the information to which he is entitled, other information which he has no right to demand. The company cannot defeat the object of the statue by omitting to keep the books prescribed. If the right books are not kept, inspection of such as they do keep must be allowed, and may be enforced by mandamus.

6. The assignee of the stock of a domestic corporation may require an entry of the transfer on its books, though his title be derived from a foreign executor. Middlebrook v. Merchants' Bank, 3 Abb. App. 295 (1886).

7. Where a peremptory mandamus was granted allowing an inspection of the transfer book of a corporation upon the relator's affidavit that she held stock of the company in certificates issued to her deceased husband. The application to the corporation not having been made within the time required by law, viz., thirty days of the election of directors (L. 1882, ch. 409, sec. 199), but the applicant believed herself to be within such time, information as to the date of such election having been refused by the corporation. Held, that while not made within the period during which the statute gives the stockholder an absolute right of examination, it was still within the discretion of the court to grant the application and upon the facts its discretion had been properly exercised by the court below. People ex rel. Stobo v. Eadie, 63 Hun, 320, 18 N. Y. Supp. 53, aff'd, without opinion, 133 N. Y. 557, 30 N. E. 1147.

8. Where a corporation seeks to prevent such an examination by denying that the applicant is a stockholder the denial must be positive and not evasive. Matter of Martin, 62 Hun, 557, 17 N. Y. Supp. 133.

9. The fact that the applicant made his demand upon the treasurer when the by-laws put the book in the custody of the secretary is not a ground for refusing relief when the treasurer did not refuse on that ground or refer the applicant to the proper custodian of the book.

Id.

10. It seems that the obligation to exhibit the stock-book to a stockholder, upon request, is terminated by its suspension for reasons which warrant its dissolution. (1887) Kelsey v. Pfaudler Process Fermentation Co., 45 Hun, 10, citing 80 N. Y. 379.

11. A statutory provision under which a corporation is organized, or in its by-laws requiring transfers of its stock to be made upon its books, is for its benefit, and where the owner of stock has assigned, for a valuable consideration, the certificate issued to him and the corporation, when requested to make the transfer, without a valid reason refuses to do so, this amounts to a waiver of the requirements; the transfer is complete and the corporation is bound to recognize the title of the assignee precisely the same as if it had done its duty and made the proper entries upon its books. Robinson v. Nat. Bank of New Berne, 95

N. Y. 637.

12. Upon the presentation of a stock certificate duly assigned and accompanied

with authority for the holder to transfer, the corporation, if it have no notice of any defect in the holder's title, is legally bound to transfer the stock upon its books and cannot thereafter be held liable by a third person claiming title. Hawes v. Gas Consumers' Benefit Co., 36 State Rep. 48, 12 N. Y. Supp. 924.

13. When a subscriber has paid for his stock but has not received his certificate therefor, he can notwithstanding, make a gift of the stock, and a formal transfer or even possession of the certificate is unnecessary to make the gift effectual. De Caumont v. Bogert, 36 Hun, 382.

14. The mere fact that a corporation acting in good faith and without notice of the rights of others, may treat registered shareholders as the actual owners of the shares standing in their names applies only to such transactions as are within the express or implied powers conferred upon the company or its shareholders collectively; and an assignee of shares having possession of a certificate, although holding under an unregistered transfer, is not bound by a contract between the registered holder and the corporation which is not within such powers. Campbell v. Am. Zylonite Co., 122 N. Y. 455, 11 L. R. A. 596, 25 N. E. 853.

15. A person may be a holder of stock without being in the full sense of the term a stockholder. No one can be made a stockholder without his consent, express or implied. Glenn v. Garth, 133 N. Y. 18, 30 N. E. 649, 31 N. E. 314.

16. The liability of a shareholder for calls made on account of unpaid stock can only be forced in an action in the nature of assumpsit and necessarily rests upon a promise to pay, express or implied; such promise must be proved by competent evidence. When, therefore, no express promise is claimed, and it appears that the person sought to be charged as shareholder never accepted that relation, that it was put upon him by another without authority and against his will, and upon being advised thereof he repudiated it, no promise can be implied and he cannot be held liable. Ib.

§ 33. Stock books of foreign corporations. Every foreign stock corporation having an office for the transaction of business in this state, except moneyed and railroad corporations, shall keep therein a book to be known as a stock book, containing the names, alphabetically arranged, of all persons who are stockholders of the corporation, 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 any such corporation. If any such foreign stock corporation has in this state a transfer agent, whether such agent shall be a corporation or a natural person, such stock may be deposited in the office of such agent and shall be open to inspection at all times during the usual hours of transacting business, to any stockholder, judgment creditor or officer