Cameron v. New York & Mount Vernon Water Co.

31 N.E. 104, 133 N.Y. 336, 45 N.Y. St. Rep. 212, 88 Sickels 336, 1892 N.Y. LEXIS 1320

• Court: New York Court of Appeals
• Decided: May 24, 1892
• Status: Published

Opinion

Finch, J.

The principal question presented is whether the defendant companies may consolidate or should be restrained from so doing. They are companies incorporated for the purpose of supplying water to the municipality and its inhabitants and their separate corporate existence is conceded. It is not denied that prior to May 1, 1891, there was competent statutory authority for the consolidation proposed (Laws of 1867, chap. 960; Laws of 1877, chap. 374), but it is insisted that the repeal of the acts which accompanied the revision of the Corporation Law took away the authority and left none in existence. (Laws of 1890, chaps. 563, 567.) By section 24 of the last-named act, it was provided that such repeal should not affect or impair any act done or right accruing, accrued or acquired before May 1, 1891, but the same may be asserted or enforced as fully and to the same extent as if such law had not been repealed. The agreement for consolidation here assailed was made between the companies through their trustees three days before the repeal, and such officers called a stockholders’ meeting to ratify the agreement and served and began the publication of the required notices. The proceeding thus commenced was regular and authorized and represented a right accruing or in process of enforcement. The acts done were not impaired by the repeal, and the rights accruing were preserved and could be asserted and enforced as fully as if no repeal had been enacted. The proceeding for a consolidation lawfully begun could be lawfully completed as if the statute had not been repealed. The contention of the appellant is that no right to consolidate accrued by the agreement of the trustees, that it could not become a fixed right or the contract of the corporations until ratified by the stockholders’ meeting, and so no right accrued until after May 1, 1891, and, therefore, was not saved. That contention leaves out of view important and specific provisions of the saving clause. No act done is to be impaired. The directors’ agreement is impaired and utterly annulled, if it cannot be ratified by reason of the repeal. And the protection given operates not merely upon rights accrued but also upon those accruing, those in process of enforcement, those which, though inchoate and incomplete, have been asserted and are moving on through an authorized procedure to an ultimate and final result. That was exactly this case and the proceeding for a consolidation was not affected by the repeal.

It is claimed that the plaintiff Cameron was not served with notice of the proposed agreement and of the stockholders’ meeting in due season. Proof was given that the notice was mailed to him April 30,1891. He claims not to have received it until May twenty-sixth, but produces it and it bears date April 29,1891. There is no reason to reject the positive proof that it was mailed on April thirtieth.

The order should be affirmed, with costs.

All concur.

Order affirmed.