In re Cecil

36 How. Pr. 477

• Court: New York Supreme Court
• Decided: February 15, 1969
• Status: Published

Opinion

Cardozo, J.

The inspectors entirely mistook their powers and duties. They are purely ministerial officers.

When a proxy apparently executed by the stockholder, regular in form was presented to them, they had no right to refuse to receive the vote, or assume to themselves the power of a judicial tribunal to try its genuineness. If it were apparently the act of the stockholder, and regular upon its -face, that ended the matter so far as the inspectors were concerned. If for any reason, not apparent upon its face, it was invalid, redress must be sought from the courts after the election, if its being used worked any detriment.

The question whether the stock was hypothecated, was wholly immaterial, this not being a monied corporation.

The preliminary objection that this proceeding only applies to monied corporations is not well taken.

The proceeding of course could not be taken under the act in relation to monied corporations (1st Ed. Stat., p. 554 § 47, 48) but it is within the 1st R. S. (Ed. Stat.), p. 560 § 5, which applies to all corporations except libraries, religious societies and certain monied institutions.

The election as to the three directors mentioned in the petition must be set aside and a new election ordered. The provisions of the order will be settled on notice.