Bechtold v. Stillwagon

119 Misc. 177

Opinion

Cropsey, J.

Plaintiff seeks to enjoin the directors of the defendant corporation from retiring him from his position as treasurer. His contention is that he was elected treasurer by the stockholders and, therefore, cannot be removed by the directors. The by-laws provide for the election of a treasurer and other officers by the vote of the stockholders. But the statute says that the directors of a stock corporation may appoint a treasurer and other officers. Stock Corp. Law, § 30. Every corporation is given power to make by-laws, but they must be “ not inconsistent with any existing law” (Gen. Corp. Law, § 11, subd. 5); a by-law that is so inconsistent is invalid (Matter of Keogh, Inc., 192 App. Div. 624, 630; Raub v. Gerken, 127 id. 42); as the power to elect a treasurer is by statute given to the directors, the power to remove him must likely be lodged with them. See People ex rel. Manice v. Powell, 201 N. Y. 194. The provision of the by-laws is ineffective. This action is not brought under section 172 of the General Corporation Law. Motion denied, with ten dollars costs.

Ordered accordingly.