Delavan v. New York, New Heaven & Hartford Railroad

154 A.D. 8, 139 N.Y.S. 17

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1912
• Status: Published

Opinions

Ingraham, P. J.:

This action is brought by the plaintiffs who are stockholders of the defendant, the Rutland Railroad Company, owning 1,349 shares of the common or preferred stock in that company. It is not alleged that either of the plaintiffs own any stock in either the New York, New Haven and Hartford Railroad Company, or the New York Central Railroad Company, and plaintiffs do not claim in this action to enforce any right or to recover for any damages sustained by the Rutland Railroad Company of which they are stockholders. They seek to maintain this action as owners of a small minority of the stock of the Rutland Company and their right to maintain the action must depend upon the right that a minority stockholder has to enforce his individual right against the defendants.

The Rutland Company is a corporation organized under the laws of the States of Vermont and New York and owns and operates a railroad from Ogdensburg in the State of New York to Alburg in the State of Vermont, and thence to Rutland and Bellows Falls in the State of Vermont and of certain branches extending to the towns of Chatham and White Creek in the State of New York. It is also the owner of the capital stock of another railroad corporation and has certain trackage agreements with certain Canadian railroad companies and agreements with steamship lines on the St. Lawrence river and on the Great Lakes. The Rutland railroad also connects with a railroad known as the Boston and Maine Railroad Company, operating a railroad in New England. The New York Central railroad is a corporation organized under the laws of the State of New York and operates an extensive system of railroads through New York State and, by reason of its control of the • stock of other railroad companies, a system of railroads extending through many of the States of the Union and constitutes one of the main lines between the Western States and the Atlantic seaboard. The New York, New Haven and Hartford Railroad Company is a corporation organized under the laws of the New England States and' controls the Boston and Maine railroad.

The New York Central Railroad Company was the owner of 47,041 shares of the preferred stock of the Rutland Company and 19,940 shares of the common stock of that company, constituting a majority of the stock issued, and by virtue of that ownership controls the election of the' directors of the Rutland Company.

The complaint alleges that in or about February, 1911, the New York Central and the New Haven companies contriving and intending unlawfully to restrain the trade and commerce within and among the several States and between the said States and foreign countries carried on by them and by the Rutland Railroad Company respectively, and contriving and intending unlawfully to monopolize such trade and commerce, and contriving and intending unlawfully to restrain and prevent competition between the New York Central Company and the New Haven Company and between the Eutland Company and the New Haven Company in respect to such trade and commerce, entered into an unlawful combination and conspiracy with the Eutland Company and its directors to destroy competition between the Boston and Albany railroad, forming a portion of the New York Central system, and the Fitchburg railroad, forming a portion of the New Haven system, and to effect a virtual consolidation of the Eutland Company and the New Haven Company by various means and instrumentalities including the following: “By transferring said forty-seven thousand and forty-one (47,041) shares of the stock of the Eutland Company held by the New York Central Company to the New Haven Company to the end that, the New Haven Company should control the Eutland Company, and should illegally vote all of said ■ stock for the election of directors of the Eutland Company and should exclude the minority stockholders from a just and legal voice in the election of directors of the Eutland Company; and by entering into a partnership agreement whereby the New York Central Company and the New Haven Company should equally share and divide the losses and profits arising from the operation of the Boston & Albany Eailroad.” In pursuance of said unlawful combination and conspiracy, the New York Central'Company and the New Haven Company wrongfully and unlawfully entered into a contract dated February 16, 1911, wherein and whereby it was agreed that all competition between the Boston and Albany division of the New York Central system and the Fitchburg division of the New Haven system should be suppressed.and that the New York Central Company and the New Haven Company would- each endeavor to develop and increase the business of the Boston and Albany railroad. A copy of this agreement is annexed to the complaint. That “ in further' pursuance of said unlawful combination and conspiracy, the New York Central Company has already wrongfully and unlawfully transferred to the control of the New Haven Company 23,035% shares constituting one-half of the controlling interest in the stock of the Eailroad [Eutland] Company held by the New York Central Company, as aforesaid, at and for the price of about $105 per share.” On July 1, 1911, the New York Central Company and the New Haven Company entered upon the performance of this contract; that in and about November, 1911, in further pursuance of the said unlawful combination and conspiracy the New York Central Company and the New Haven Company further agreed that the remaining 23,035% shares of the stock of the Rutland Company held by the New York Central Company should be transferred to the New Haven Company at and for the price of about $105 per share, and on November 20, 1911, the executive committee of the board of directors of the New York Central Company adopted a resolution, whereby the president of the New York Central Company was authorized to sell to the New England Navigation Company, a company controlled by the New Haven Company, 23,520% shares of preferred stock of the Rut-land Company and certain demand notes of the Rutland Company held by the New York Central Company amounting to $373,000 for the aggregate amount of $3,632,332.79, and upon such sale being made by the president the treasurer and secretary were authorized to execute such documents and make such transfers and take such steps as may be necessary to carry the resolution into effect; that on November 21, 1911, the New Haven Company adopted a resolution authorizing the purchase of the preferred stock of the Rutland Company and demand notes of the Rutland Company for the sum of $3,632,332.79.

The complaint then alleges that in consequence of these acts a combination or conspiracy in restraint of trade or commerce among the several States and with foreign nations formerly carried on by the railroad companies independently has been formed and is in operation and the defendants are attempting to monopolize such interstate and foreign trade and commerce “ to the great and irreparable damage of the people of the States of New York, Massachusetts and Vermont and the United States, in derogation of their rights, in violation of the laws of the States of New York, Massachusetts and Vermont, and the act of Congress adopted July 2nd, 1890,” commonly known as the Sherman Act, and “ to the great and irreparable damage and injury of all the minority stockholders of the Butland Company.” It is then alleged that the New Haven Company now threatens to, and unless restrained by this court will, pursuant to said unlawful combination and conspiracy, take over from the New York Central Company and pay for at the above-mentioned price of about $105 per share the remaining one-half of the controlling stock of the Butland Company, and the New York Central Company threatens to and will, unless restrained by this court, transfer said stock to the New Haven Company, and the New Haven Company threatens to, and unless restrained by this court will, vote all the stock of the Butland Company acquired by it in pursuance of said unlawful combination and conspiracy. at all meetings of the Butland Company to be hereafter held in favor of directors wholly dictated and controlled by the New Haven Company, and will deprive the minority stockholders of the Butland Company of a just and legal voice in the election of directors of the company, and will maintain and perpetuate an illegal control and domination of all the business and affairs of the Butland Company.

It is then alleged that there are about 800 minority stockholders of the Butland Company who are citizens and residents of a large number of States, and the plaintiffs bring this suit on their own behalf and on behalf of all other stockholders of the Butland Company similarly situated who may come in and contribute to the expense of the suit and join in the prosecution thereof. And the judgment demanded is that the defendant the Butland Company be perpetually enjoined from registering on the books of the Butland Company any transfer of the stock of the Butland Company from the New York Central Company to the New Haven Company and from in any manner recognizing or accepting either the New York Central Company or the New Haven Company as the holder or owner of any shares of the capital stock of the Butland Company; from permitting either the New York Central Company or the New Haven Company from voting any of said stock; from permitting any of the stockholders of the Butland Company to vote any amount in excess of ten per cent of the outstanding capital stock thereof; enjoining the New Haven Company from acquiring or receiving from the New York Central Company any of the stock of the Rutland Company; from voting any of the stock of the Rut-land Company and from doing any act tending to place the capital stock of the Rutland Company under the control of the New Haven Company; that the New York Central Company be perpetually enjoined from in any manner transferring or delivering to the New Haven Company any of the capital stock of the Rutland Company; from voting any of the capital stock of the Rutland Company; and also for a judgment adjudging that the stock of the Rutland Company heretofore transferred by the New York Central Company to the New Haven Company was illegally transferred and setting aside and annulling such sale; appointing a receiver of the Rutland Company; and for such other and further relief as the equity of the case may require.

Upon this complaint the Special Term granted a temporary injunction restraining the New Y ork Central Railroad Company, its stockholders, directors, officers, agents and attorneys and each of them from in any manner transferring or delivering to the defendant the New Haven Railroad Company or its representatives any of the capital stock of the defendant Rutland Railroad Company now owned by the said New York Central Company and enjoining the New Haven Railroad Company, its stockholders, directors, officers, agents and attorneys from acquiring or receiving from the defendant the New York Central Company any of the stock of the defendant Rutland Company and enjoining the Rutland Company from registering on its hooks any transfer of its stock from the New York Central Railroad Company to the New Haven Railroad Company, and from the order granting that injunction the defendants appeal.

While there is a general allegation in the^complaint_as„to »rn_^«g—i iinniwi'iM the irreparable injury,.,that this transfer will cause to the. minority stockholders of, tlieT Rutland^Gompany, no fact is alleged which would, justify an infer,ence^of^such^damage. Before the agreements alleged in the complaint and which are complained of were made the New York Central Company owned a majority of the stock of the Rutland Railroad Company; after such transfer is completed the New Haven Company will- own a majority of the stock of the Rutland Company, and it is not suggested upon what principle the minority stockholders of- the Rutland Company will suffer by this transfer of control. It is alleged that the New Haven Company and the corporation which it controls compete With the Rutland Company, but that is strenuously denied by the defendants, they claiming that the Rutland Company is a connection or extension of the New Haven road rather than a competing road, and it certainly is not clearly established that as the roads exist at present there can be any substantial competition between them. The mere fact that passengers could by a devious and extended route which would not be practicable as a transportation proposition pass over the lines of the New Haven Company or railroads controlled by it from one point to another on its system, which points are also on the system of the Rutland railroad, does not establish that they are competing roads. I do not suppose that the New Haven railroad could be said to be in competition with the New York Central railroad for passenger and freight business between New York and Albany, because a passenger could go from New York to Boston and from Boston to Albany over the New Haven railroad. But in the view that I have of the controlling principles that must determine the questions submitted to us it -is not necessary to determine this question. What is apparent is that the New York Central railroad and the systems which it controls are much greater competitors of the Rutland railroad than the New Haven railroad can ever become, and certainly, if it would be illegal for the New Haven railroad to acquire a majority of the stock of the Rutland railroad it would be equally illegal for the New York Central railroad to hold a majority of that stock, and its continuous ownership of that' stock, which involves the control of the Rutland railroad, is a more serious violation of the laws of the United States than the control of the Rutland railroad by the New Haven Company would be. Accepting the allegations of the complaint, the New York Central Company, being the owner of a majority of the stock of the Rutland railroad and controlling its operation and management through the ownership of such stock, has been violating the Federal law for years and subjecting itself to the penalties imposed by that act. It ■ now seeks to relieve itself from this unlawful position by transferring its stock to another railroad, and the effect of the injunction granted below is to restrain the New York Central railroad from ceasing to violate the Federal law in transferring its stock to another corporation because it is alleged that the other corporation will also violate the law if it acquires the stock. Just how this could possibly affect the rights of the minority stockholders is difficult to understand. The object of this attack upon the right of the New York Central railroad to sell its stock is, however, quite frankly stated in the brief of the learned counsel who appeared for the respondent, as indeed it fairly appears from the allegations of the complaint.

It appears from the record and is repeated in the brief that the position of the Eutland minority stockholders’ committee before the Public Service Commission when this question as to allowing this transfer of stock was before it, was that in any event the control should not be allowed to pass unless adequate provision was made for the protection of the minority stockholders and that this could not be accomplished except by requiring the purchasing company to pay for such minority stock as may be offered the same price as it had agreed to pay for the majority stock, namely, about $105 per share. And complaint is made that the Public Service Commission in passing upon the application of the New York Central railroad to acquire the stock of the Ontario and Western Bailroad Company held that such leave should not be granted except by imposing as a condition of authorization that the Central Company should take over such minority stock as may be. offered it upon the samé terms per share as it paid to the New Haven Company and that the Public Service Commission granted the application of the Central Company to turn over the control of the Eutland Company to the New Haven Company without imposing the slightest condition or restriction for the protection of the minority. One of the plaintiffs’ contentions, as stated by the learned counsel for the respondents, is that “ without regard to the Anti-Trust Law and even if the transaction were otherwise lawful, one corporation will not be permitted to acquire the bare control of a competitor, with all the opportunities and temptations for oppression and discrimination presented by such a situation without at least being required to offer to the minority holders the opportunity to sell their holdings on the terms on which the majority is being acquired. The ordinary dictates of common fairness require that such a condition be imposed before the minority interest can be subjected, to such, changed control.” And a point in the respondents’ brief is devoted to an attack upon the Public Service Commission for granting this application without requiring the New Haven railroad to purchase at the same price the stock held by the minority stockholders.

It must be quite apparent from this record that the injury that these plaintiffs complain of was caused by the refusal of the New Haven railroad to purchase their stock.at the same price as the stock was purchased from the New York Central railroad, and.that the object of the minority stockholders’ objection before the Public Service Commission and this litigation is to forcé the New Haven railroad to purchase their stock at the price at which they have purchased the majority stock from the New York Central railroad. It is certainly • a doubtful proposition whether a court of equity will allow its process to be used to accomplish such a purpose.

There is one legal question presented at the outset of this investigation which, however, renders further discussion of these questions unnecessary, and that is as to the right of the plaintiffs as minority stockholders to maintain this action or obtain any óf the relief they ask. As before stated, the plaintiffs are owners of a minority of the stock of the Butland railroad. . They do not ask in this case to enforce the rights of the Eutland Company but simply their. rights as owners of a minority of the stock. The facts upon which a minority stockholder can base a cause of action against a majority stockholder has been a question which has been greatly discussed and which in several jurisdictions has led to a considerable difference of opinion; but in this State, at least, the rights that a minority stockholder can enforce against the holders of a majority of the stock have been strictly limited. The distinction between an action brought by a minority stockholder to enforce a right of the corporation whose stock he holds and the right of a minority stockholder to enforce a right of action vesting in himself as a. stockholder is- clearly stated in the opinion of Mr, Justice Latjghlin in the case of Niles v. N. Y. C. & H. R. R. R. Co. (69 App. Div. 144). It is there distinctly stated that a violation of the duty of the holders of a majority of the stock to manage a corporation in good faith in the interest of its stockholders imposed a liability in favor of the corporation and this obligation can be enforced only by the corporation or by a suit instituted in its behalf; that a depreciation in the value of the stock as the result of wrongs committed against the corporation did not give to a stockholder suffering from such a depreciation a cause of action against the holders of a majority of the stock. As was said by Mr. Justice Laugi-ilin in that case: “ The plaintiff has been damnified, but the damages sustained by him flow from the wrong committed against the corporation, and are, in contemplation of law, remote, indirect and consequential. "Where, as here, the common law prevails, such damages are not recoverable except in the right of the corporation. * * ■ * Even though the depreciation in the value of the stock be capable of ascertainment as a basis of damages at law, the wrongs complained of are wrongs against the corporation, and it has a cause of action for the restoration of the property or for the damages sustained. It is presumed that a diligent enforcement of these remedies will result in the restoration of the corporate property or its equivalent, and will afford adequate indemnity to the stockholders. A recovery in such case by the stockholders in their own right would not be a bar to a recovery of the same damages by the corporation. A double recovery, has not been permitted in these actions up to the present time, either at law or in equity.” And that case was affirmed by the Court of Appeals in 176 New York, 119, where the court said: “ True, the plaintiff has suffered a depreciation in the value of his stock as a result of the wrong, and in this respect the injury was personal to the holder's of the stock. But every stockholder has suffered from the same wrong, and if the plaintiff can maintain an action for the recovery Of the damages sustained by him, every stockholder must be accorded the same right. The injury, however, resulting from the wrong was, as we have seen, to the corporation. The depreciation in the value of the plaintiff’s stock, and that of the other stockholders, was in consequence of the waste and destruction of the property and franchise, of the corporation. There are wrongs which if committed against a stockholder entitle him to a right of action against the person committing the wrong for the damages sustained, as, for instance, where a person had been induced'to purchase stock in a corporation and pay a higher price than the stock was fairly and reasonably worth, or where the owner of stock had been induced to part with it for a less sum than its true value, by reason of false and fraudulent representations of others with reference to its value. * * * But these wrongs are distinguishable from those against the corporation. They result in injury to the stockholder upon whom the wrong is practiced, but do not injure the other stockholders or the corporation itself. The injuries, however, in this case are not of that character. The defendants had obtained control of the affairs of the corporation through the board of directors elected by them. These directors undertook to manage the property of the corporation in good faith, according to their best judgment and skill in the interests of all of the stockholders. Having assumed the management, they were bound to use their best endeavors to prevent default in the payment of interest and the consequent sacrifice of the corporate property. Under the allegations of the complaint the directors of this corporation not only failed to discharge their duties to the stockholders, but they actively participated in the depletion of the company’s treasury and in a sacrifice of the company’s property, thus depriving the stockholders and the creditors of that which belonged to them. ” The court then cites from Judge Vann’s opinion in the case of Flynn v. Brooklyn City R. R. Co. (158 N. Y. 493): “Where a majority of the directors, or stockholders, or both, acting in bad faith, carry into effect a scheme which, even if lawful upon its face, is' intended to circumvent the minority stockholders and defraud them out of their legal rights, the courts interfere and remedy the wrong. Action on the part of directors or stockholders, pursuant to a fraudulent scheme designed to injure the other stockholders, will sustain an action by the corporation, or, if it refuses to act, by a stockholder in its stead for the benefit of all the injured stockholders.” That was an action to recover the damages sustained by the corporation in consequence of an illegal act of a majority after such acts had been committed and the corporation and its stockholders injured thereby, while in this case the majority stockholders are to be restrained from disposing of their stock because • such a result might happen by virtue of the control of the Few Haven Bail-road Company over the corporation. Certainly if, after the wrong has been committed, a minority stockholder cannot sue to recover damages caused to his stock by such wrongful and illegal acts, such minority stockholder cannot have a cause of action in equity to restrain the acquisition of a majority of the stock by an individual or corporation, because it is possible that similar results would follow the acquisition of a majority of the stock.

The question as to the right of the corporation itself to maintain this action was presented to the United States Circuit Court in the case of Hunnewell v. N. Y. Central & H. R. R. R. Co., not reported, and in that case Judge Hoyes, in refusing an application for an injunction, said: “The conclusion reached from the examination thus far is that the complainant in this suit is not entitled to an injunction restraining the sale of said shares. If, however, this conclusion were not reached and this suit were treated as one by the stockholder in his own interest, it would still be impossible for me to grant an injunction upon the ground of want of application to the Public Service Commission, because it now appears that such application has been made.” But those cases only follow the principle established in a line of cases of which McHenry v. Jewett (90 N. Y. 58) is the leading case, in which Chief Judge Andrews said: “ It is not sufficient to authorize the remedy by injunction, that a violation of a naked legal right of property is threatened. There must be some special ground of jurisdiction, and where an injunction is the final relief sought, facts which entitle the plaintiff to this remedy must be averred in the complaint and established on the hearing. The complaint in this case is bare of any facts authorizing final relief by injunction. It is true that it is alleged that the defendant, by the use of the shares, has been enabled to a great extent to control the management of the corporation in the interest of the Few York,.Lake Erie and Great Western Eailway Company, with little or no regard to the best interests of the company issuing the shares. But there are no facts supporting this allegation, nor is it averred that the interests of the latter company have been prejudiced, or that the value of the shares has been impaired by the acts of the defendant. So also it is alleged that it is greatly against the plaintiff’s interest as a shareholder to permit the defendant to vote upon the shares, and that the plaintiff will suffer great and irreparable injury if the defendant is permitted to do so. But no facts justifying these conclusions are stated, and the mere allegation of serious or irreparable injury, apprehended or threatened, not supported by facts or circumstances tending to justify it, is clearly insufficient.” (See, also, Gamble v. Queens County Water Co., 123 N. Y. 91; Colby v. Equitable Trust Co., 124 App. Div. 262; affd., 192 N. Y. 535; Flynn v. Brooklyn City R. R. Co., 158 id. 493.) And that principle has been uniformly followed in this court and in the Court of Appeals.

It is clear that neither in the complaint in this action nor in' the evidence submitted to the Special Term was there allegation or proof that this transfer to the New Haven Company has caused or could cause any injury to the plaintiffs or other minority stockholders except so far as such a transfer would injure the corporation and thus indirectly depreciate the value of the plaintiffs’ stock. ■ In fact, Hr. Justice Laughlin’s opinion conclusively establishes that in this case the plaintiffs have sustained and can sustain no damage by reason of the transfer of the Butland stock to the New Haven Company, so far as it has been completed or by the contemplated transfer of the remainder of the stock owned by the New York Central Company, unless, indeed, the plaintiffs have been damaged by the refusal of the Public Service Commission to compel the New Haven Company to purchase the plaintiffs’ stock, for the same price that the defendant New Haven Company paid the New York Central Company, a damage which I think will be conceded cannot be the basis of an injunction to restrain the New York Central Company from selling or the New Haven Company from buying the stock at a price which the parties may agree to. -There is no allegation that the plaintiffs’stock has decreased in value by reason of this sale of the New York Central’s holdings, and an allegation as to the method by which the New York Central Company has decreased the value of the plaintiffs’ stock by virtue of its management of the Butland Company would tend to show that it was a distinct advantage to the plaintiffs as stockholders of the Butland Company to have the management changed so that such discrimination against the Butland Company should not be continued. Applying, therefore, the principle that has been established and uniformly applied in this State for many years, it would seem clear that plaintiffs neither alleged in the complaint nor submitted proof by affidavit which would justify the court in restraining the owner of the stock of the railroad from selling it to whom it pleased and at any price the purchaser would agree to pay. We have, however, the allegation upon which the plaintiffs seem to lay great stress and upon which, as I understand Mr. Justice Laughlin’s opinion, he concluded that the plaintiffs are entitled to an injunction — that this transfer will involve in some way a violation of the statutes of the United States known as the Sherman Act.

The 1st section of the Sherman Act makes every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations illegal, and section 2 provides that every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or. commerce among the several States or with foreign nations shall be deemed guilty of a misdemeanor. (26 U. S. Stat. at Large, 209, §§ 1, 2.) And it is alleged that this sale by the New York Central Company to the New Haven Company is a contract, combination or conspiracy in restraint of trade or commerce and is, therefore, illegal. The Supreme Court of the United States has lately arrived at a comprehensive construction of the meaning of these provisions in Standard Oil Co. v. United States (221 U. S. 1) and in United States v. American Tobacco Co. (Id. 106). It is unnecessary that we should attempt to determine whether or not these contracts are a violation of this statute or that the sale of this stock by the New York Central Company would be a part of or the carrying out of an illegal contract, for it appears to me clear that a violation of this statute by the Few York Central Company or the Few York, Few Haven and Hartford Railroad Company gives to the plaintiffs as stockholders of the Rutland Railroad Company no right of action to enforce this statute. We may assume, without deciding, that the Rutland Railroad Company, whose stock is being transferred in pursuance of an agreement which is illegal and void under this statute, would have a right to enjoin a transfer of control which would be necessary to carry into effect the void agreement, although it is difficult to understand how the Rutland Company could be affected injuriously or otherwise because two of its stockholders ■ have entered into an agreement which the law of the land has declared to be illegal and which makes those taking part in it guilty of a crime.. It. is not alleged that the Rutland Company is a party in any way to the contract. Two of its stockholders have entered into what is claimed to be an illegal contract, and if they have violated the law the parties to the contract are those who- must bear the penalty. There is nothing in the law and nothing is suggested to show that the Rutland Railroad Company would be subject to any penalty because of' the making of this contract by two of its stockholders; its right to exercise its franchise could not possibly be affected; the corporate existence could not be threatened; and no injury could possibly be inflicted upon it. But even assuming that the Rut-land Railroad Company would have a cause of action, each of its stockholders certainly would not have. Fo act of the Few York Central Company and the Few Haven Company could possibly impose any liability upon the minority stockholders protesting against the action of the majority stockholders in selling its stock. These plaintiffs occupied no other relation to this transfer of stock by the Few York Central Company to the Few Haven Company than did' any other citizen whose interest it is to see to it that the laws are maintained. If this contract ■ and transfer is a violation of the Sherman Act, the remedy is ' an action by the Federal authorities to enforce the Federal laws. Certainly the Supreme Court of the State of Few York has no power to impose a penalty upon either of- these railroad companies or their officers or directors who have united in tin’s contract for a violation of the Sherman Act; this court could not indict or punish these defendants for any violation of its provisions; nor could it enforce any right which was violated by the Sherman Act, as no power is given by that act to the State courts to enforce it or to prevent by injunction or otherwise its violation. And certainly applying the rule before stated, which is the settled law of this State as to the cases in which a minority stockholder will be allowed to apply to the court for relief as against a majority stockholder, there is nothing either alleged or proved in this case that would make a violation of a Federal statute by the New York Central Eailroad Company or the New York, New Haven and Hartford Eailroad Company a ground of' action for any relief in the courts of this State. An examination of all the authorities cited by the learned counsel for the plaintiffs on this question would only extend this opinion. They have all been examined, but none of them are authorities against the proposition controlling upon this court, which is the settled law of this State, and by that it seems to me. clear that the plaintiffs have no cause of action.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. ■

Scott, J., concurred; Laugiilin and Miller, JJ., dissented.