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to recover thereon against the makers, although no such resolution had been passed. Scott et al. v. Johnson, 5 Bosw. 223.

31. "Except to a purchaser for valuable consideration and without notice," in section 8 (186) the notice must be of the fact that there had been no previous resolution. The fact must be positively proven, or necessarily inferred from what is proven. Ogden v. Raymond, 5 Bosw. 26.

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32. Contemplation of insolvency" must also mean something more than mere expectation of its occurrence; it must include provisions against its results, so far as the transferee is concerned; and that can only be applicable where he is already a creditor, and the object is to take his debt out of the equal ratable distribution of the assets of the company when insolvent. Heroy et al. v. Kerr, 8 Bosw. 200.

33. It was the design of this statute to guard against collusive transfers of the effects of corporations. It was not meant to interfere with honest transfers made in order to pay their just debts. Aspinwall v. Meyer, 2 Sandf. Sup. Ct. 180. 34. Every person who, for any consideration that the law judges to be valuable, has acquired, directly or indirectly, a legal or equitable title or interest by an assignment or transfer from a moneyed corporation is to be deemed a purchaser. Palmer v. Yates, 3 Sandf. Sup. Ct. 138.

35. A transfer of a note by an insolvent moneyed corporation further to secure a loan made previous to its insolvency, on an understanding or verbal agreement with its president, that the lender should, at all times, be kept adequately secured by collaterals, is in violation of this statute, and cannot be sustained. Company was insolvent before transfer. Furniss v. Sherwood, 3 Sandf. Sup. Ct. 523.

36. A special resolution is necessary to authorize each particular transfer by an incorporation of over $1,000 of its effects, where the transfer is made in and according to the ordinary course of business, and to pay just claims (citing 3 N. Y. 290) 1 Duer, 126.

37. Statute has no application to a case of transfer to a bona fide holder for value. Ogden v. Raymond, 1 Keyes (Ct. of App.), 42.

38. Transferee of a note for over $1,000 must prove he took it in good faith and for value. Houghton v. McAuliffe, 2 Abb. App. 410.

39. An insolvent banking corporation organized under the general law, after proceedings against it had been instituted, and a receiver ordered, assigned property to a former stockholder to secure him and other stockholders for liabilities incurred for bank. Held, assignment was invalid, and property must be restored. Leavitt v. Tylee and others, 1 Sandf. Ch. 207.

40. It cannot be objected to an action on a single note for less than $1,000, that it was one of many which, in the aggregate, exceeded $1,000, and therefore it is void. Ogden v. Raymond, 3 Abb. App. 396.

41. Proofs by subscribing witness that assignment was by authority of board of directors, and that seal was corporate seal and so affixed before commissioner of deeds is prima facie evidence of the facts therein recited. Johnson v. Bush, 3 Barb. Ch. 207.

42. The revisers say that the principal object sought to be obtained by this section was, "in the event of insolvency to secure an equal distribution of the effects of a company among all its creditors."

43. Upon insolvency, either actual or contemplated, every creditor acquires a right under the statute to a pro rata share of its assets, and any creditor paid in

full must refund, whether ignorant or not of insolvency. Such creditor has parted with nothing he had a right to receive, and upon repayment loses nothing he had a right to retain. His debt revives, and he again becomes a creditor and shares equally with the others. Brouwer v. Harbeck, 9 N. Y. 593. See note 14. 44. The cashier of the Mastin Bank arranged with defendants to accept four drafts amounting to $35,000 drawn on them in the firm name of John J. Mastin & Co., payable to the Mastin Bank, upon an agreement made by him on behalf of the bank as a condition of acceptance, that the bank should keep a corresponding balance to its credit with the defendants, which the defendants should hold and have a lien on as a security for their liability as acceptors, and that defendants be kept informed of the condition of the bank, and should have the right at any time to charge the bank with the amount of the bills so accepted, and take, appropriate or apply the said deposits of the bank, or so much thereof as was necessary to the payment of the liability of the bank because of such acceptance. Held, that the cashier had power to make the agreement. The facts that the bank was in need of funds, and its officers were making efforts to keep its credit unimpaired and to meet all future calls on it, it not being supposed to be insolvent, and all claims on it having been paid as they were presented, do not bring the above agreement within the operation of the statute against transfers in contemplation of insolvency. Coates v. Donnell, 16 J. & S. 52.

45. It was held in Brouwer v. Harbeck, 9 N. Y. 589, that a payment made by an insolvent corporation, or one made in contemplation of insolvency, when the intention of the corporation was to give preference to a particular creditor, was void irrespective of the questions, whether the insolvency was open and notorious, and whether the party receiving the payment knew of the insolvency, or the particular motive of the corporation in making the payment. A payment made with a view of giving a preference to a particular creditor is one rarely, if ever, made in the usual course of business. In the case of Robinson v. Bank of Attica, 21 N. Y. 406, the creditor was sought out by the debtor, and payment made by an unusual transfer of assets. An act done by a corporation in the ordinary and usual course of its business, uninfluenced by the condition of its affairs, cannot be said to have been done in contemplation of insolvency. Dutcher v. I. & T. Nat. Bank, 59 N. Y. 11.

§ 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 refuse 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 business office of the corporation is located, for an order requiring 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 corporation, 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

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whom issued, and as particular a statement 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 requir ing 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 the secretary or treasurer thereof, personally, at least ten days before the time for showing cause.

(L. 1890, ch. 564, § 50, as amended by L. 1892, ch. 688, § 50.)

1. Under the corresponding provisions of Laws 1873, chapter 151, to confer jurisdiction on the court, the petitioner must prove that he is owner and that the shares have been destroyed or lost and cannot, after due diligence, be found. Biglin v. The Friendship Ass'n, 46 Hun, 223.

2. Where it appears that the shares which the petitioner claims to own were issued to two persons as trustees and that a portion of said shares are in petitioner's possession unindorsed, and the remaining shares are held by the trustees, who refuse to surrender them because the cestui que trust refuse to consent, the application will be denied. Ib.

3. See Brisbane v. D., L. & W. R. R., 25 Hun, 438, aff'd 94 N. Y. 204.

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§ 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 allegations 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 can not after due diligence be found, and that no sufficient 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 provision 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 rights 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 security 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 obedience 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.

(L. 1890, ch. 564, § 51, as re-enacted by L. 1892, ch. 688, § 51, as amended by L. 1905, ch. 35, § 1.)

Proof must be taken of the facts alleged in the petition. 69 App. Div. 149; Matter of Coats, 75 App. Div. 469.

Matter of Speir,

§ 69. Financial statement to stockholders. - Stockholders owning 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 more 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 section he shall forfeit and pay to the person making such request

the sum of fifty dollars, and the further sum of ten dollars for every twenty four hours thereafter until such statement shall be furnished.

(L. 1890, ch. 564, § 52, as amended by L. 1892, ch. 688, § 52.)

1. Application to be by stockholder of record. Pray v. Todd, 71 App. Div. 391, 75 N. Y. Supp. 947.

2. As to right of stockholder to inspect books of corporation, see editorial note to Weihenmayer v. Bitner, 45 L. R. A. 446, presenting the authorities on that question.

3. See also on this topic Frost on "New York Corporations."

§ 70. Liabilities of officers, 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.

(L. 1897, ch. 384, § 4.)

1. Under Laws 1842, chapter 165, corresponding to the foregoing section, held to be the absolute duty of a transfer agent in this State of a foreign corporation, moneyed or otherwise, to exhibit at all reasonable times during the usual hours of transacting business to any stockholder when required, the transfer book and a list of the stockholders, if in his power to do so. (1884) Kennedy v. The Chicago & Rock Island R. R. Co., 14 Abb. N. C. 326.

A demand for the exhibition of the stock book is not sufficient as a demand for the transfer book. Ib.

2. A mandamus will be granted against the agent of a foreign corporation compelling him to allow the transfer book to be inspected by a stockholder thereof regardless of the agent's motives or reasons for refusing an inspection. People ex rel. Harriman v. Paton, 20 Abb. N. C. 195.

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