Obrázky stránek

process, does not operate to give the court jurisdiction of cases not included in sections 134 and 427 of the code (id.)

a. A foreign corporation, by appearing and answering, does not waive the objection that the court has not jurisdiction (Harriott v. N. Jersey R. R. Co. 8 Abb. 284; 2 Hilton, 262; see Murray v. Vanderbilt, 39 Barb. 141; Hulbert v. Hope Mut. Ins. Co. 4 How. 275).

b. Where the demand on which the action was brought arose upon written contracts for the payment of money, made, delivered, and payable in Canada, and all the labor done and materials furnished were pursuant to those contracts, and upon work located in Canada, for the corporation created by the laws of Canada, and existing there, except a small part which was performed in this State, pursuant to said contracts,—held not a case where the subject of the action was situate in this State, and although the defendant, the foreign corporation, had property in this State, it could not be attached (Campbell v. Proprietors of Champlain & St. Lawrence R. R. 18 How. 412).

c. The courts of this State will not entertain jurisdiction of a suit between two corporations both chartered by the laws of Maryland respecting lands lying in that State, the object of which suit is to annul, on the ground of fraud, a conveyance of such lands to the defendants, executed and recorded in Maryland (Cumberland Coal Co. v. Hoffman Coal Co. 30 Barb. 159; 20 How. 62).

d. Chap. 107, of Laws of 1847, providing for suits against foreign insurance corporations, on contracts made within this State, authorizes an attachment as a provisional remedy, in an action on a policy of insurance issued in this State (Burns v. Provincial Ins. Co. 13 Abb. 425).

e. The supreme court has no power over a foreign corporation in a proceeding commenced by a stockholder to wind up its affairs (Murray v. Vanderbilt, 39 Barb. 141; and see Howell v. Chicago R. R. Co. 51 Barb. 378; Fisk v. Rock Island R. R. 4 Abb. N. S. 378).

ƒ. Pleadings in actions by and against foreign corporations.—In a suit by a foreign corporation, the complaint need not state the act of incorporation or charter at large, or even the title of the act or grant or the date of its passage (Holyoke Bank v. Haskins, 4 Sand. 675; but see 9 Abb. 168; and Marine Ins. Co. v. Jauncey, 1 Barb. 487).

g. The provisions of the revised statutes (art. 1, tit. 10, ch. 8, p't 3), modifying the rule of pleading in actions by corporations, do not apply to foreign corporations (Waterville Manuf. Co. v. Bryan, 14 Barb. 182). And in an action by a foreign corporation, under a general denial, it must prove its corporate existence (id.) The complaint in an action against a foreign corporation should, it seems, state the residence of the plaintiff, or state if he be a resident or nonresident, or it should show that the cause of action arose or is situated within this State (House v. Cooper, 16 How. 293). In an action against a foreign corporation for equitable relief, it is improper to join a claim for damages against individual defendants (House v. Cooper, 30 Barb. 157; see ante, 172, h, 222, b.

h. The statute of limitations is a good defense to an action against a foreign corporation (Olcott v. Tioga R. R. Co. 20 N. Y. 210). See, as to proceedings against, Grand Trunk and Great Western Railroad of Canada, Laws 1857, p. 188; Laws 1868, p. 1690. Buffalo and Lake Huron Railway, Laws 1858, ch. 121; Whitehead v. Buffalo &c. R. R. Co. 18 How. 218.


Actions in place of scire facias, quo warranto, and of informations in the nature of quo warranto.




Scire facias and quo warranto abolished, and this chapter substituted.

Action may be brought, by direction of the legislature, by the attorney general, to vacate a charter.

Action to annul a corporation, when and how brought by the attorney general, by leave of the supreme court.

431. Leave to sue, how obtained.

432. Action upon information or complaint of course.

433. Action, when and how brought to vacate letters patent. 434. Relator, when to be joined as plaintiff.

435. Complaint and arrest of defendant in action for usurping an office.

436. Judgment in such actions.

437. Assumption of office, &c., by relator, when judgment is in

his favor.

438. Proceedings against a defendant, on his refusal to deliver books or papers.

439. Damages, how recovered.

440. One action against several persons claiming office or fran


441. Penalty for usurping office or franchise, how awarded.
442. Judgment of forfeiture against a corporation.

443. Costs against a corporation, or persons claiming to be such,

how collected.

444. Restraining corporation, and appointment of a receiver.
445. Copy of judgment-roll against corporation, where to be

446. Entry of judgment relating to letters patent.
447. Action for forfeiture of property to the people.

$428. Scire facias and quo warranto abolished, and this chapter substituted.

The writ of scire facias, the writ of quo warranto and proceedings by information in the nature of quo warranto, are abolished; and the remedies heretofore obtainable in those forms may be obtained by civil actions under the provisions of this chapter. But any proceedings heretofore commenced, or judgment rendered, or right acquired, shall not be affected by such abolition.

a. The remedy heretofore given by scire facias, to obtain execution of a judgment, is superseded by the provisions for an action therefor under the code (Cameron v. Young, 6 How. 372; Alden v. Clarke, 11 id. 209; and see Thurston v. King, 1 Abb. 127; Ireland v. Litchfield, 8 Bosw. 634; Connor v. Such, 9 Bosw. 221). The action in the nature of a quo warranto is in substance

the same, and is governed by all the rules regulating proceedings under the former practice (The People v. Pease, 30 Barb. 588).

a. If, after the death of one of several defendants pending the action, his heirs appear voluntarily without any order to revive against them, and the action proceeds to judgment, they are bound by it (Requa v. Holmes, 19 How. 430).

b. The executors of a deceased judgment creditor may maintain an action against the judgment debtor, "for and to obtain an execution to be issued in their names to be levied of any lands which the judgment debtor held when the judgment was docketed" (ib.; and see Ireland v. Litchfield, 22 How. 179; Tallman v. Varick, 5 Barb. 277).

c. An assignee of a judgment, after the death of the judgment debtor may maintain an action to have execution of the original judgment (Jay v. Martin, 2 Duer, 655).

§ 429. Action to vacate a charter.

An action may be brought by the attorney general, in the name of the people of this State, whenever the legislature shall so direct, against a corporation, for the purpose of vacating or annulling the act of incorporation, or an act renewing its corporate existence, on the ground that such act or renewal was procured upon some fraudulent suggestion or concealment of a material fact, by the persons incorporated, or by some of them, or with their knowledge and consent.

d. If it be conceded that the attorney general may maintain an action in the name of the people to restrain a municipal corporation, it can only be to restrain them from making a fraudulent or illegal disposition of the corporate property (The People v. Lowber, 28 Barb. 65; see The People v. Clark, 53 Barb. 172).

e. The attorney general may maintain an action in the name of the people to restrain a municipal corporation from exercising authority not possessed by it under its charter or by law (The People v. Mayor of N. Y. 10 Abb. 444; 32 Barb. 35; 19 How. 155).

$430. Action to annul a corporation..

An action may be brought by the attorney general, in the name of the people of this State, on leave granted by the supreme court, or a judge thereof, for the purpose of vacating the charter or annulling the existence of a corporation, other than municipal, whenever such corporation shall—

1. Offend against any of the provisions of the act or acts creating, altering, or renewing such corporation; or,

2. Violate the provisions of any law by which such corporation shall have forfeited its charter by abuse of its powers; or,

3. Whenever it shall have forfeited its privileges or franchises by failure to exercise its powers; or,

4. Whenever it shall have done or omitted any act which

amounts to a surrender of its corporate rights, privileges, and franchises; or,

5. Whenever it shall exercise a franchise or privilege not conferred upon it by law.

And it shall be the duty of the attorney general, whenever he shall have reason to believe that any of these acts or omissions can be established by proof, to apply for leave, and upon leave granted to bring the action in every case of public interest, and also in every other case in which satisfactory security shall be given, to indemnify the people of this State against the costs and expenses to be incurred thereby.

a. An action to annul the charter of a corporation of this State must be brought by the attorney general in the name of the people (Smith v. Metropolitan Gas Light Co. 12 How. 187; and see The People v. Mayor of N. Y. 28 Barb. 65; The People v. Erie Railway Co. 36 How. 129).

§ 431. Leave, how obtained.

Leave to bring the action may be granted upon the application of the attorney general; and the court or judge may, at discretion, direct notice of such application to be given to the corporation or its officers, previous to granting such leave, and may hear the corporation in opposition thereto.

§ 432. Action by attorney general in name of the people. An action may be brought by the attorney general in the name of the people of this State, upon his own information, or upon the complaint of any private party, against the parties offending in the following cases:

1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this State, or any office in a corporation created by the authority of this State; or,

2. When any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall make a forfeiture of his office; or,

3. When any association or number of persons shall act within this State as a corporation, without being duly incorporated.

b. It is for the attorney general, and not the supreme court, to determine whether in any particular case it is proper that an action to try the right to any office shall be brought or not (The People v. Att'y Gen'l, 22 Barb. 114; 3 Abb. 13; 13 How. 179).

c. In an action brought by the people and a claimant, to try the title to a

public office, upon the rendition of a regular judgment of ouster against the officer, and in favor of the claimant, the officer becomes ousted, and the party declared to be entitled, upon taking the official oath and filing bonds (when required), becomes eo instanti invested with the office (The People v. Conover, 6 Abb. 220).

a. A writ of assistance, or leave to issue an execution, should not be granted upon such a judgment, directing the sheriff to put the successful party in possession of the office, and the books and papers belonging to it. So far as the office is concerned, such a judgment executes itself. So far as possession of the books and papers is concerned, the remedy provided by section 438 of the code must be pursued (id.)

b. It seems that in an action under sections 428 and 432 of the code, an execution is only proper for the purpose of collecting costs, and a fine, if any has been imposed (id.)

c. Under subdivision 1 of this section, an action in the nature of a quo warranto may be brought to try the title to a military office (The People v. Sampson, 25 Barb. 254; and see Parish of Bellport v. Tooker, 29 Barb. 257; Re Whiting, 2 Barb. 514).

d. An action in the nature of a quo warranto does not lie against the secretary and treasurer of a railroad company, holding his office as a mere servant (The People v. Hills, 1 Lans. 202).

e. Mode of trial of actions in the nature of quo warranto (see The People v. Albany R. R. Co. 1 Lans. 308).

See Laws 1870, ch. 151.

§ 433. Action, when and how brought, to vacate letters patent.

An action may be brought by the attorney general, in the name of the people of this State, for the purpose of vacating or annulling letters patent granted by the people of this State, in the following cases:

1. When he shall have reason to believe that such letters patent were obtained by means of some fraudulent suggestion or concealment of a material fact, made by the person to whom the same were issued or made, or with his consent or knowledge; or,

2. When he shall have reason to believe that such letters patent were issued through mistake, or in ignorance of a material fact; or,

3. When he shall have reason to believe that the patentee, or those claiming under him, have done or omitted an act, in violation of the terms and conditions on which the letters patent were granted, or have by any other means forfeited the interest acquired under the same.

f. This section is limited to letters patent granted by the people, and does not extend to letters patent granted by the king of Great Britain prior to the Revolution (The People v. Clarke, 9 N. Y. 349).

§ 434. (Am'd 1866, 1867.) Relator to be joined as plaintiff. When an action shall be brought by the attorney general, by virtue of this chapter, on the relation or information of a person

« PředchozíPokračovat »