Ballston Terminal R. v. Hudson Val. Ry. Co.

78 N.Y.S. 399

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1902
• Status: Published

Opinion

KELLOGG, J.

The injunction granted herein was a proper exercise of discretion, unless it satisfactorily appeared to the court that appellant had procured a consent to such crossing which is binding on the plaintiff. The complaint alleges that no consent was given. So, also, does the affidavit of Frederick A. Beach, the vice president of the plaintiff. The answer alleges a consent, both verbal and written. The affidavit of Thomas O’Connor states that he made a verbal agreement with Vice President Beach, — but not with the company, or other officers of the company, — and a few days thereafter the said vice president handed him a paper, with his signature as vice president, but no seal of the corporation was attached, and the signature of the secretary was lacking, though a place for such signature appeared upon the paper, and also an affidavit for the secretary to make, which does not appear to have been made. This paper appears attached to the answer, and again appears attached to the affidavit of O’Connor. Both of these show the same defects and incompleteness of execution. The body of the instrument expressly contemplates that it shall be executed by the secretary and have the corporate seal attached, which is usually in the custody of the secretary of a corporation, before the instrument can be deemed to be executed, or be prima facie evidence, as the act of the directors of the corporation. This paper cannot be accepted in this condition as evidence of a corporate act. A verbal agreement made with any other than the board of directors in such a matter cannot bind the corporation.

We think the injunction order was properly granted, and the order is affirmed, with $io costs and disbursements. All concur.